Advanced Search Options
Indian Laws - High Court - Case Laws
Showing 1 to 20 of 51 Records
More information of case laws are visible to the Subscriber of a package i.e:- Party Name, Court Name, Date of Decision, Full Text of Headnote and Decision etc.
-
2018 (8) TMI 2148
Dishonour of Cheque - failure to take into consideration the provisions of Section 269 SS of the Income Tax Act, 1961 while taking cognizance of offence - HELD THAT:- In the instant case, the prosecution is initiated against the petitioner for the alleged dishonor of a cheque. The case of the complainant is that in repayment of the hand loan advanced by him, the petitioner/accused issued the cheque in question which has been dishonored. No doubt, the sources from which the complainant paid the loan amount may be required to be established during the trial, but the prosecution under Section 138 of N.I. Act cannot be stalled for non-compliance of Section 269 SS of the Income Tax Act. Any cash transaction in violation of Section 269 SS of Income Tax Act may give rise to an independent criminal offences, but on account of violation of the said provision, the prosecution of the petitioner for the alleged dishonour of cheque under Section 138 of Act does not become bad in law. Even otherwise, the contention urged by the petitioner could be decided only during the trial.
Petition dismissed.
-
2018 (8) TMI 2140
Requirement to stamp sale certificate - requirement of registration of sale certificate - sale certificate should be treated only as a sale deed or not - to be classified under Article 18(c) of the Indian Stamp Act or not - writ petition was dismissed on the ground that the sale certificate was issued in the year 2008 and till 2013, the appellant had not chosen to register the same on the ground that it is not compulsorily registrable - HELD THAT:- So far as the requirement of registration is concerned, there is no doubt that the sale certificate is not required to registration in view of Section 17(2)(xii) of the Registration Act - Though Section 17 refers to documents which are compulsorily registrable, sub-section (2) provides that nothing in clauses (b) and (c) of sub-section (1) would apply to the nature of the documents as set out thereafter and in clause (xii) in particular specifically stated that any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer, as any sale certificate issued as per the provisions of the Security Interest (Enforcement) Rules 2002 in public auction, is deemed to be sale by the revenue. Thus the statute makes it very clear that the sale certificate issued need not be registered.
Applicability of Indian Stamp Act, 1899 - HELD THAT:- Though the sale certificate referred is not compulsorily registrable whether the stamp duty is payable on the same is relevant - So far as the certificate of sale itself is not compulsorily registrable document in view of Section 17(2)(xii) of the Indian Stamp Act, transfer of title in favour of the purchaser is not vitiated by non registration of the certificate. All that is required is to file a copy of the sale certificate as per Section 89 (4) of the Registration Act.
Therefore, the refusal by the Sub Registrar to file sale certificate issued by the Recovery Officer by making necessary entries in the Book in accordance with sub-section (4) of Section 89 of the Registration Act is not justified.
In B.Arvind Kumar Vs.Government of India and Others [2007 (5) TMI 657 - SUPREME COURT], it is held that a property sold in public auction pursuant to an order of the Court and once the sale is confirmed it becomes absolute and the title vests with the auction purchaser. The subsequent sale certificate issued to the purchaser is the evidence of such title which does not require registration under Section 17(2) (xii) of the Registration Act. In the case on hand also the property was purchased in public auction on 16.05.2008 and the sale certificate was issued on 31.08.2008. Therefore, the appellant/purchaser automatically becomes title holder of the property by virtue of the sale certificate. The payment of stamp duty on the sale certificate is not warranted as it is only a sale certificate issued which has to be filed or scanned in Book No.1 as per Section 89(4) of the Registration Act.
The payment of stamp duty perhaps may arise only when the appellant wants to deal with the property by selling it. As long as the sale certificate remains as it is, it is not compulsorily registrable. If the appellant uses the document for any other purpose, then the requirement of stamp duty etc., would arise. Hence, the plea of the appellant is well within the statutory powers.
The dismissal of the writ petition on the ground of delay and payment of stamp duty therefor does not arise and therefore, cannot be sustained - Appeal allowed.
-
2018 (8) TMI 2137
Dishonour of Cheque - proclaimed offender - whether when the main FIR itself has been compromised between the parties, subsequent FIR registered under Section 174-A of the IPC can be quashed on the basis of compromise? - HELD THAT:- This Court is of the considered view that the objective of the coercive mechanism prescribed the provisions of the Code of Criminal Procedure for declaring an accused as proclaimed person is mainly to ensure that the person remains present before the Court to face the trial and to receive the punishment for his alleged conduct, which has constituted the offence. If the person has appeared before the Court, even after he was declared as proclaimed person or is granted bail by the Court after such declaration then the object of the procedure prescribed under the Code of Criminal Procedure stands achieved.
In the present case, as is borne out from the record, the main FIR under Section 420 of the IPC was registered on 11.6.2016. For the first time, the police had given him a notice under Section 41-A of the Cr.P.C. on 3.5.2017. However, the petitioner did not appear before the prosecuting agency, which led to issuance of arrest warrant of the present petitioner. Since the warrants of arrest cannot be executed as such, the proceedings under Section 82 Cr.P.C. were initiated - the object of coercive measures which was enforced against the petitioner stands duly achieved. The Trial Court had even granted regular bail to the petitioner for the offence under Section 174-A of the IPC.
This Court feels that since the main FIR has already been compromised between the parties and is not going to proceed further, therefore, it would not be justified to make the petitioner to face trial only for an offence under Section 174-A of the IPC. Therefore, even the FIR No.138 dated 09.04.2018, which pertains to offence under Section 174-A of the IPC deserves to be quashed.
Petition allowed.
-
2018 (8) TMI 2107
Seeking appointment of an arbitrator - Arbitration in the Credit Information Companies (Regulation) Act, 2005 - credit institution - applicant pleaded that the third respondent CIC has erroneously and without verification of any details, included false information as furnished by the credit institution, regarding the applicant - whether the dispute as between the applicant as a borrower and the credit institution is not a dispute that would fall under Section 18 of the Act for settlement in terms thereof read with the provisions of the A & C Act?
HELD THAT:- Section 18 of the Act is a mechanism for settlement of disputes relating to business of credit information. It does not relate to settlement of any dispute as between the borrower and the credit institution in relation to the credit information given by the credit institution to the CIC, including the correctness or otherwise of such information. This will be the legal position also in relation to any dispute as between a 'client' as defined in Section 2(c) (which is an inclusive definition) of the Act and the credit institution. Section 18 of the Act would apply only when dispute arises on matters relating to business of credit information. A dispute between the borrower and credit institution, including any dispute as to the correctness or otherwise of the credit information given by the credit institution to the CIC, is not a dispute relating to the business of credit information.
This request filed invoking Section 11(6) of the Arbitration and Conciliation Act, 1996 read with Section 18 of the Credit Information Companies (Regulation) Act, 2005 fails - Application dismissed.
-
2018 (8) TMI 2077
Dishonor of Cheque - contention of the respondents is that no case was made out for they to be summoned only because they were alleged to be directors of the concerned company (first accused) - inherent power of this Court under Section 482 of the Code of Criminal Procedure, 1973 - HELD THAT:- The case involves the application of the penal clause contained in Section 138 of Negotiable Instruments Act, 1881, the liability of the respondents requiring to be examined also in light of the provision contained in Section 141 thereof - Mere allegations that these respondents were directors or "active participants" in the management or day to day affairs of the company are not sufficient. There is no averment, not even remotely made, that they were incharge of or responsible for affairs of the company "at the time of commission of the offence". The opinion leading to the revisional court's order, thus, cannot be faulted.
The petition and the pending application are dismissed.
-
2018 (8) TMI 2072
Dishonor of cheque - insufficiency of funds - rebuttal of statutory presumption - Section 138 of NI Act - HELD THAT:- The respondent/accused has not disputed the handwriting on the two cheques and has not denied that the signature on the two cheques is of the respondent/accused. The respondent/accused has not denied that the transaction in respect of Plot No. 28 had taken place and the respondent/accused admitted that he had received ₹ 09,00,000/- - the accused only denied that he had not received ₹ 13,60,000/as claimed by the accused.
The learned Magistrate should have granted benefit of statutory presumption created by Section 139 of the Act of 1881 and should have rejected the defence of the respondent/accused. The learned Magistrate has committed an error by placing the burden on the complainant to show that the transaction in respect of Plot No. 28 had taken place. The learned Magistrate has further committed an error by delving into the genuineness of the transaction in respect of plot No. 28, when the accused had also not denied the transaction and admitted that he had received ₹ 09,00,000/- towards part payment as per the agreement of sale.
The impugned judgments are unsustainable - Appeal allowed - decided in favor of appellant.
-
2018 (8) TMI 2067
Dishonor of Cheque - framing of charges against the petitioners - criminal breach of trust - whether the allegations made in the FIR when taken on their face value would constitute the offences punishable under Sections 406 and 420 of the IPC? - HELD THAT:- In the opinion of this Court, simply because the company withheld payment either to the milk suppliers or it failed to make payment due to the milk van and salary to the informant, the same would not constitute an offence punishable under Section 406 of the IPC - In order to make out a case of criminal breach of trust, it is not sufficient to show that the money has been retained by the company but also that the company dishonestly disposed of the same or dishonestly retained the same. The mere fact that the accused persons did not pay the amount due would not amount to criminal breach of trust.
It is well settled position in law that in order to attract the provisions of Section 420 IPC, the guilty intent at the time of making the promise is a prerequisite and an essential ingredient thereto, and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 420 IPC - In Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. [2009 (7) TMI 1365 - SUPREME COURT], the question for determination before the Supreme Court was whether breach of contract of an agreement for sale would constitute an offence under Section 406 or Section 420 of the IPC. After examining the fact of the case and relevant Sections of the IPC, the Supreme Court held that an offence of “cheating‟ would be constituted when the accused has fraudulent or dishonest intention at the time of making of promise or representation. A pure and simple breach of contract does not constitute the offence of “cheating‟.
In the present case, what has been alleged by the informant in his written report is that the company did not make appropriate payment to the milk suppliers. It also failed to make payment due to the milk van and salary of the informant as also wages due to the labour of the milk van. Apart from the allegation of non-payment of dues to various persons, as discussed above, there is no iota of allegation they had dishonest intention in misappropriation of property. There is no allegation that the company or the petitioners made any willful misrepresentation. There is also no allegation that the petitioners induced the informant to believe anything to be true which was false and which the petitioners knew or believed to be false - in view of the allegation made by the informant, the agreement, if any, was between the milk suppliers and the company and the informant had got no concern with such agreement. In the event, the company failed to fulfill its liability under the agreement, the aggrieved persons would have been the milk suppliers.
Apart from the fact that the allegations made in the FIR lacks necessary ingredients of sections 406 and 420 of the IPC, concept of vicarious liability is unknown to criminal law. The IPC does not provide for vicarious liability upon the directors of the comapny for any offences alleged to be committed by a company.
From perusal of the cheques, it would be apparent that the alleged cheques were issued under the signature of petitioner no. 1 on behalf of Natural Dairy Pvt. Ltd. Thus, the liability to pay, if any, was of the company of which the petitioner no.1 was the authorized signatory - It is settled position in law that when a cheque, which is drawn by the company, is dishonoured, the company will have to be made a party to the proceedings under Section 138 of the NI Act and failure to do so will vitiate the prosecution.
This Court is of the opinion that the criminal proceedings initiated against the petitioners in the present case, is an abuse of the process of law and, as such, the criminal proceedings as well as the impugned order cannot be sustained. The Court is also of the opinion that the learned Judicial Magistrate-1 st Class, Patna without appreciating the facts and considering the settled provisions of law rejected the application filed by the petitioners under Section 239 of the CrPC in the most mechanical manner.
Application allowed.
-
2018 (8) TMI 2064
Dishonor of Cheque - discharge of legally enforceable debt or not - rebuttal of presumptions - Section 118 and 139 of the NI Act - Cross-examination of witnesses - preponderance of probabilities - HELD THAT:- The defence has to only show that its stand is probable and that would lead to rebuttal of presumptions. In the present case, the reply notice dated 01.04.2014 issued by the respondent assumes significance, because not only did the respondent deny the claims made by the appellant in her statutory notice, but defence of the respondent was clearly indicated in the reply notice. Despite the respondent calling upon the appellant not to deposit the remaining two cheques, the appellant went ahead to deposit the same.
A perusal of the cross-examination of the appellant in the witness box shows that a specific objection was raised on behalf of the respondent in respect of the receipt at Exh. 31 and signature on the same was denied. In the face of such denial by the respondent, it was incumbent upon the appellant to have proved signature of the respondent on the said receipt. No effort was taken by the appellant to do so - it was for the appellant to have taken appropriate steps to prove that the receipt was indeed signed and executed by the respondent. As no such steps were taken, the receipt at Exh. 31 could not have become a basis for the appellant to claim that the respondent had admitted of having taken loan from the appellant.
The trial Court in the impugned judgments and orders has taken into consideration the entire oral and documentary evidence on record. It was found that there were transactions between the parties pertaining to immovable property. It was found that the presumptions in the present case were satisfactorily rebutted by the respondent by responding to the statutory notice and also effectively cross-examining the appellant. It is settled law that an accused in such cases can rebut the presumption not only by placing on record positive evidence and examining witnesses, but also by discrediting the complainant by effective cross-examination - In the present case, the admissions given by the appellant in cross-examination read with the documents produced by the appellant herself, show that the entire story put forth on behalf of the appellant was not proved beyond reasonable doubt and that the respondent had successfully proved his defence on the touchstone of preponderance of probabilities.
It is trite in criminal jurisprudence that the one that accrues in favour of the accused is to be adopted - Appeal dismissed.
-
2018 (8) TMI 2048
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - demand notice was properly served or not - HELD THAT:- This court finds that the ground on which the impugned judgment and order of acquittal has been structured is preposterous. Section 138(b) of the NI Act casts an obligation on the drawee of the cheque which is dishonoured that after receipt of the information he makes a demand for the payment of the said amount (the amount mentioned in the cheque) by giving a notice in writing to the drawer of the cheque within 30 days from the day of receipt of the information by him from the bank regarding the dishonour of the cheque for insufficiency of the fund etc.
The accused-respondent has sought to prove 'the payment' by aid of two chance witnesses and both of them came to the accused-respondent for purpose of taking money. One has claimed to receive ₹ 50,000/- and another has claimed to have ₹ 2,00,000/-. It appears that they are very close to each other and they are too in a close business relation. The accused-respondent did not care to show on the date of payment from which source he got such huge amount. Whether he had collected from private sources or it was taken out from his account in any bank. Even, there is no whisper in this respect.
The attempt to rebut the presumption, amenable to be drawn out what the complainant-appellant has proved is the foundation fact, is apparently very robust, but if the entire transaction is scrutinized with resilience it would surface that there is no reason that a prudent person should believe the opposite.
This Court has also noticed that the accused-respondent has acted sometimes in a manner which cannot be stated to be bona fide. Even in the Court, he has stated that he did not receive the notice but the record from the postal department has squarely established that notice was duly served. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communication received from the Postal Department. As such, this Court does not have any other alternative but to observe that the accused-respondent has grossly failed to rebut the presumption under Section 139 read with Section 138 of the NI Act.
The accused-respondent is liable to be convicted and is accordingly convicted under Section 138 of the NI Act - Appeal allowed.
-
2018 (8) TMI 2022
Seeking declaration that they are not obliged to pay an amount under the term loan facility - Section 8 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- There is an apparent distinction between an order containing error apparent on the face of the record and the illegal and erroneous order. In former case, Court can exercise the review jurisdiction but in later case, the remedy lies by moving the Higher Forum. The scope under Section 8 of the said Act is very limited and limited to the extent of the cause of action pleaded in the suit in relation to the arbitration clause or agreement. If the subject dispute is covered by an arbitration agreement, it is imperative on the Court to refer the parties to arbitration instead of venturing to proceed to decide the suit on merit. If an express embargo is created under the statute, the Court cannot travel beyond it. The Court cannot pass such a direction which is not contemplated under Section 8 of the said Act and, therefore, the direction as sought for in the instant application is beyond the legal competence of the Court who was in seisin of the suit and was exercising jurisdiction within strict parameters of section 8 of the said Act. Mere granting a liberty to file a review application cannot be perceived to have conferred any right upon the litigant to have the order in his favour as the Court before hearing the review application has to decide the said application within the circumference of the provision applicable in this regard.
This Court does not find that the grounds taken for review comes within the periphery of Order XLVII Rule 1 of the Code of Civil Procedure and, therefore, the review application is liable to be dismissed.
-
2018 (8) TMI 2020
Dishonor of Cheque - repeated proceedings or not - petitioner submitted that the trial Court has committed an error in rejecting the application preferred by the petitioner - HELD THAT:- The Court had transferred the police case to the Court of Judicial Magistrate First Class at Pen and direction was given in the circumstances that both the cases be tried in the same Court. The order does not indicate that there should be a joint trial of both the cases. The said order was passed on 23rd January, 2014 and it was never contended earlier that there has to be joint trial. It is also pertinent to note that the procedure contemplated for the trial of the complaint under Section 138 of the Negotiable Instruments Act which is summons triable case is different from that of the procedure contemplated for the trial of the case initiated by the police for the offence under Section 420 of Indian Penal Code which is warrant triable case. It is also noted that the affidavit of evidence was tendered by the complainant in the complaint case under Section 138 of Negotiable Instrument Act on 20th February, 2014. Thereafter, the complainant preferred another application for additional documents by filing additional affidavit of evidence on 2nd August, 2014. The said applications were allowed by the trial Court on 1st November, 2014. The petitioner challenged the said orders in various courts and ultimately could not succeed in the said proceedings. It is also apparent in the meantime the examinationinchief of the complainant is also recorded partly in the case initiated under Section 420 of Indian Penal Code. The said examinationinchief was recorded on 5th July, 2014. Thus, it is evident that both the cases have proceeded separately and not as a joint trial. It is thereafter this application was preferred by the petitioner on 27th July, 2018 which was rejected by impugned order. It also appears that the case was expedited by the Hon'ble Supreme Court.
In the case under Negotiable Instrument Act, if a fine is imposed it is to be adjusted to meet the legal enforceable liability. There cannot be such a requirement in the offence under Indian Penal Code. The case under Negotiable Instruments Act can only be initiated by filing a complaint. However, in the case under Indian Penal Code such a condition is not necessary. There may be overlapping of the facts in both the cases but the ingredients of the offences are entirely different.
Petition dismissed.
-
2018 (8) TMI 2013
Principles of natural justice - Content of legal notice issued by petitioner - offence of defamation under Section 499 of IPC - allegation is that without considering any aspects, merely on the basis of a self serving statement of the complainant the learned Magistrate has issued summons to the petitioner to face trial for the alleged offences - HELD THAT:- The essence of Section 499 of IPC is the publication of imputations concerning any person with the intention to harm, knowing or having reason to believe that such imputations will harm the reputation of the person and they must be made or published to any person other than the person concerning to whom it is written or made - Publication has been explained by the Bombay High Court in the above decision cited by the learned counsel for the petitioner and it is stated therein What is publication? Making a defamatory matter known after it has been written to some person other than the person for whom it is written is a publication in its legal sense. A defamatory matter must, therefore, be communicated to some person other than the person concerning whom it is written. Communicating a defamatory matter to the person concerned only cannot be said to be a publication.
It is not the case of the complainant that the contents of the legal notice sent by the petitioner were published by him to any person other than the complainant. According to the complainant the notices were sent through post to his registered address. It has to be presumed that when a registered notice is sent to the last known address it is meant to be opened and read by the person concerned and not by any other person. In the absence of any allegation that such letters were in fact opened and read by the employees or any other persons other than the addressee, the complainant cannot contend that the petitioner had any intention to make a publication of the said contents of the notice to any outsiders. The complainant has not even examined any of his employees to show that the letter sent by the petitioner were opened by any of his employees and they had read the contents thereof - As a result, there was no communication or publication of the contents of the said notices/complaints within the meaning of Section 499 of IPC.
Contents of legal notice - HELD THAT:- Going by the assertions made by the complainant, the allegation made in the said notice that the petitioner was harbouring offender in whose name there is a case pending in Patna High Court is defamatory in nature. Of course, no material is produced before this Court or before the trial Court to show that the said statement is a false statement. Even assuming that the complainant was not harbouring any of the person, or any of his employee as alleged in the notice, yet in the absence of any material to show that the said statement was made with an intention to defame the petitioner, in my view the rigors of Section 499 do not get attracted - the averments made in the private complaint and the statements made in the sworn statement of the complainant do not make out the ingredient of the offence under Sections 499 and 500 of the Indian Penal Code in so far as the petitioner is concerned.
There is nothing in the impugned order to indicate that the learned Magistrate has conducted any enquiry as contemplated under Section 202 of the Cr.P.C. In any case, the complainant himself having failed to make out that the allegations contained in the legal notice issued by petitioner were defamatory in nature and that they were made/published with an intent to harm reputation of the complainant the prosecution of the petitioner is wholly illegal and cannot be sustained.
The continuation of the proceedings against the petitioner is an abuse of the process of law and therefore liable to be quashed - petition allowed.
-
2018 (8) TMI 1985
Smuggling - offences contemplated by Sections 21(c) and 23(c), read with Section 28 of the Act - inconsistencies in the testimonies of the various witnesses who deposed regarding the seizure effected - HELD THAT:- Once the test reports, using the Field Testing Kit of the NCB team, and as provided by the CRCL, are discarded from consideration, the only evidence, to indicate that the parcel booked at Student Infoline Courier contained heroin, was the statement, of the appellant, recorded under Section 67 of the Act. The statement of Umesh Madan only proved the fact of booking, by the appellant, of the parcel at Student Infoline Courier and its subsequent booking, by Umesh Madan, at Aramex. It did not throw any light on the contents of the parcel. True, in response to a leading question, put to him, during the recording of his statement, under Section 67 of the Act, on 17 th April, 2012, the appellant did state that he had booked a parcel, containing heroin, at Student Infoline Courier in April 2011, the fact of the parcel containing heroin figured only in the suggestion contained in the leading question put to him in that regard. That apart, the said statement was retracted, by the appellant, by way of a written retraction, placed in the file of the case relating to the recovery of 410 g heroin from the appellant, as recorded by the learned Special Judge in the statement, of the appellant, under Section 313 of the Cr PC on 18th February, 2014.
The statement of the appellant, under Section 67 of the Act, having been recorded in the office of the NCB, and having been retracted by the appellant subsequently, it cannot be safely said that the statement was voluntary, especially in respect of an entirely different consignment, being investigated in an altogether different case. In the absence of any other corroborative evidence, I am not convinced that a case of attempt to export heroin from India, can be said to have been made out against the appellant, solely on the basis of his statement under Section 67 of the Act.
The prosecution has not been able to prove, conclusively, that the appellant had attempted to export heroin, and that he had, therefore, committed the offences contemplated by Section 21(c), 23(c) and 28 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 - appellant is, accordingly, acquitted of the said charges, and shall be released forthwith, unless required to be detained in any other case - Appeal allowed.
-
2018 (8) TMI 1921
Recruitment on the post of LDC in pursuance of advertisement of the year 2013 - limited argument made by learned counsel for the petitioner is that the petitioner’s candidature should be considered as having qualified the computer qualification as he was having Degree with one of the subject of Computer Application - HELD THAT:- This Court is of the opinion that the law laid down by this Court in SHIVOM GUPTA VERSUS STATE OF RAJ AND ANR [2017 (5) TMI 1711 - RAJASTHAN HIGH COURT] clearly indicate that a person having qualification of Computer Application in graduation shall be entitled to be considered as qualified for the computer qualification or any Diploma or Computer Operator & Programming Assistant (COPA) or Data Preparation and Computer Software (DPCS).
The respondents are directed to consider candidature of the petitioner for appointment on the post of LDC in pursuance of advertisement of the year 2013 while treating him to be having a valid qualification of Computer Application obtained in Graduation and provide him appointment on the post of LDC if he is otherwise eligible and meritorious within a period of 60 days from today - Petition allowed.
-
2018 (8) TMI 1913
Auction - sale to highest bidder - Permission to carry out the formalities for disposal of the immovable properties of the Company in liquidation - HELD THAT:- Considering the highest offer from M/s. Recycling Solutions Pvt. Ltd. Panoli, through Mr.Viral K. Shah, learned advocate, which is proper and adequate, the same deserves to be accepted as sale consideration of immovable property being property of Lot No.I i.e. “Leasehold land admeasuring about 25,912 sq.mtrs., being Plot No.208/2, G.I.D.C, Panoli, Ankleshwar”, originally belonging to the Company (in liquidation) and the same be sold in favour of M/s. Recycling Solutions Pvt. Ltd., Panoli, as per the conditions mentioned in the advertisement - M/s. Recycling Solutions Pvt. Ltd. Panoli, being the highest bidder, shall deposit remaining amount of ₹ 7,88,00,000/- (Sale consideration of ₹ 8.37 Crores - ₹ 49,00,000/- received as EMD) within the time prescribed as per the terms and conditions. Thus, the sale is confirmed by accepting the bid of M/s. Recycling Solutions Pvt. Ltd., Panoli, being the highest bidder.
On receipt of total sale consideration from M/s. Recycling Solutions Pvt. Ltd., Panoli, the Official Liquidator shall give physical and actual possession of the immovable properties of the Company (in liquidation) i.e. Leasehold land admeasuring about 25,912 sq.mtrs., being Plot No.208/2, G.I.D.C, Panoli, Ankleshwar to it and thereafter shall undertake the exercise of executing a sale deed in favour of M/s. Recycling Solutions Pvt. Ltd., Panoli.
-
2018 (8) TMI 1912
Grant of Bail - petitioner contends that the petitioner has been in custody for nearly ten months now since 29th September, 2017 and is no more required for investigation - professional misconduct - HELD THAT:- It is evident that despite the fact that the original documents of the property, that is, Plot No. 752, Udyog Vihar, Phase-V, Gurugram, Haryana were mortgaged with the bank, the petitioner continued to represent that the documents were in his possession thereby induced him to part with the payment as noted above. For securing the loan on the strength of the original documents of the property in question the petitioner forged several documents - However, considering the fact that the petitioner has been in custody for the last ten months now and one of the co-accused is yet to be arrested, the evidence is primarily documentary in nature and the trial is likely to take some time, this Court deems it fit to grant bail to the petitioner.
The petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with one surety bond of the like amount subject to the satisfaction of the learned Trial Court further subject to the condition that he will not leave the country without the prior permission of the Court concerned and in case of change of address will intimate the same to the Court concerned by way of an affidavit - petition disposed off.
-
2018 (8) TMI 1888
Service of order - Ex-parte order - want of proper service on the defendant in the suit - HELD THAT:- The court should be satisfied that either the defendant is deliberately avoiding the service, so the order of substituted service can be passed or if the Court is satisfied that for any other reason, the summons cannot be served in ordinary way, then the order of substituted service can be granted.
On the point of setting aside of ex-parte decree, the Hon'ble Supreme Court, in the case of INTERNATIONAL WOOLEN MILLS VERSUS STANDARD WOOL (U.K.) LTD. [2001 (12) TMI 864 - SUPREME COURT], has held that it is possible even though the defendant has not entered evidence, the plaintiff may prove its case through oral and documentary evidence. If after consideration of oral and/or documentary evidence, an ex parte decree is passed, it would be a decree on merits.
The Court can also go for service of publication and once it is published, then sub-rule (2) of Rule 20 will be attracted, which states the effect of substituted service, i.e., substituted service by order of Court shall be effectual as if it was made on the defendant personally. Thus, it lays down the deeming fiction. However, the plaintiff can ask for substituted service after complying with the requirement of Order 5 Rule 17 of the Code of Civil Procedure. If a person refuses to give the acknowledgment and if at all with all due and reasonable diligence, the defendant is not found, then it is mandatory on the service officer to affix the copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resides.
Ex-parte order st aside - the suit is restored to its original file - petition dismissed.
-
2018 (8) TMI 1854
Attachment of property - non-compliance of principles of natural justice as well as non-compliance of the provisions contained under the Benami Transaction (Prohibition) Act, 1988 - service of notice - application of mind relating to the order of approval - HELD THAT:- This Court finds that it would not be appropriate for this Court at this stage to examine the veracity and legality of the notice of attachment issued way back as on 22/12/2017 as of now as the matter is already pending before the adjudicating authority. However, all the objections, which the petitioner has raised before this Court, can be taken up by him before the adjudicating authority and it would be for the adjudicating authority to decide and examine all the objections and pass a reasoned order.
Petition disposed off.
-
2018 (8) TMI 1841
Whether it was expedient in the interest of justice that an enquiry should be made into an offence which may come within Clause (b) of sub-section 1 of Section 195 of the 1973 Code? - HELD THAT:- The decision of the Supreme Court in the case of PRITISH VERSUS. STATE OF MAHARASHTRA & ORS. [ 2001 (11) TMI 1017 - SUPREME COURT ] lays down in substance that principle of natural justice is not breached in the event the Court does not give opportunity of hearing to a proposed accused person at the time of formation of opinion as contemplated in Section 340 of the 1973 Code. But in an appropriate case in my opinion the Court can choose to hear the accused at the stage of formation of opinion itself and that would not be in violation of the provisions of the Code.
The power or jurisdiction of the Court has not been curtailed in Section 340 of the 1973 Code. The authorities cited by Mr. Khosla lay down that the proposed accused has no right to be heard at the initial stage of proceeding under Section 340 of the 1973 Code. But that principle cannot be stretched to mean that Court is barred from hearing them at all at the stage of formation of opinion under the aforesaid provision. I do not find any error apparent on the face of the record or any other ground which would warrant review of my order passed on 18th April, 2017.
Petition dismissed.
-
2018 (8) TMI 1762
Arbitral Award - proceedings under Section 34 of the 1996 Act - Held that:- It is elementary that in receiving a challenge to an arbitral award, the Court does not exercise appellate authority or take up the burden to reappraise the evidence to ascertain whether the award in respect of a particular head was justified. The arbitrator is regarded as a final arbiter on facts and unless the award under a particular head is barred by the agreement between the parties or is patently absurd to the meanest mind, the Court would scarcely interfere therewith. It is evident that the appropriate tests were applied by the Single Bench while assessing the award made under claim no.10 and the Court came to the correct conclusion that such aspect of the award could not be interfered with.
The award of pendente lite interest under claim nos. 12 and 13 in the award impugned before the Single Bench was liable to be set aside in its entirety - the award of post-award interest is not interfered with since that is within the exclusive domain of the arbitrator.
|