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Indian Laws - Case Laws
Showing 21 to 40 of 67 Records
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2016 (3) TMI 1401 - DELHI HIGH COURT
Right in the ancestral property - suit property as per the plaint was purchased by the grandfather of the plaintiff Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra and who is defendant no.1 in the present suit - no cause of action disclosed - bar under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 - HELD THAT:- The ratio of the judgment of the Supreme Court in the case of YUDHISHTER VERSUS ASHOK KUMAR [1986 (12) TMI 380 - SUPREME COURT] has been followed recently by the Supreme Court in its judgment in UTTAM VERSUS SAUBHAG SINGH & ORS. [2016 (3) TMI 1369 - SUPREME COURT] by extending the application to even coparcenary property inherited by a male Hindu from his paternal ancestor.
The suit is also barred by Section 4(1) of the Act, inasmuch as, as per the admitted facts stated in the plaint the suit property was purchased by Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra/defendant no.1. Once the property is purchased in the name of defendant no.1, defendant no.1 becomes the sole owner of the suit property unless the plaintiff is able to bring out a case within the exceptions to Section 4(1) of the Act, which are contained in Section 4(3) of the Act of existence of HUF or property being purchased in trust. The plaint does not show existence of any HUF being created after 1956 or HUF existing prior to 1956 which continued after 1956 - also, the plaint does not make any averment with respect to the property being purchased in trust by the grandfather Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra/defendant no.1.
The suit is therefore barred by the provision of Section 4(1) of the Act - suit dismissed.
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2016 (3) TMI 1400 - BOMBAY HIGH COURT
Dishonor of Cheque - Friendly Loan - acquittal of the accused - Section 138 of the Negotiable Instrument Act - HELD THAT:- The learned Magistrate has found that there are circumstances available on record which reasonably indicate that a businessman like the appellant would not advance a friendly loan of ₹ 3,40,000/- to a stranger like the respondent and that too without there being any receipt obtained from the respondent acknowledging the receipt of a friendly loan of ₹ 3,40,000/- by him. The learned Magistrate has found that the evidence of the complainant that although the accused i.e., respondent No. 1 had issued a receipt to him, the original receipt was handed over back by him to the respondent, is not inspiring any confidence. The learned Magistrate has observed that such version of the complainant or the appellant is hard to be believed as nobody would return such a conclusive and direct proof on mere acceptance of confirmation letter which is also not drafted happily.
There are no perversity or arbitrariness in the learned Magistrate drawing a conclusion that the basic requirement of the offence punishable under Section 138 of the Negotiable Instrument Act that the cheque must be issued in discharge of a legally enforceable liability has not been proved beyond reasonable doubt. No doubt, there is a presumption that a cheque is issued in discharge of such a legally enforceable liability/debt, the facts and circumstances appearing in the evidence of the prosecution in this case go to show that the defence taken by the respondent that the cheque was for some other transaction is probable and therefore, one must say, the presumption has stood rebutted.
Appeal dismissed.
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2016 (3) TMI 1398 - KARNATAKA HIGH COURT
Dishonor of Cheque - acquittal of the accused - Sections 82 and 83 of Cr.P.C. - HELD THAT:- The presence of the petitioner is required before the Magistrate, before whom he is not ready to go and surrender. If the inherent powers are exercised to quash the proceedings against the person who do not respect the process of Court, it would amount to abuse of process of Court to protect such persons. Hence, it would be just and proper that the petitioner to surrender before the Magistrate who issued proclamation to secure his presence. He is at liberty to file application for discharge before the Magistrate on the ground that the main accused has already acquitted due to lack of evidence.
Petition dismissed.
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2016 (3) TMI 1394 - SUPREME COURT
Seeking declaration of title and joint possession over the said suit property - Whether the High Court has erred in upsetting the findings of facts by reversing the judgment and decree of the first appellate court? - HELD THAT:- The High Court has erred in reversing the judgment and order passed by the first appellate court. The High Court should have noticed that the Plaintiffs/Appellants are the owners of the suit land by way of registered sale deed. The non-application of mind on the part of the High Court on the aforesaid vital aspect of the case is erroneous in law as it is not based on the correct appreciation of facts and evidence on record.
Whether the plea taken by deceased Respondent No. 1/defendant No. 1 being in possession as a lessee could claim the alternate plea of adverse possession taken by Respondent No. 1 or vice-versa? - HELD THAT:- Respondent No. 1 has no right to claim ownership over the suit property on the ground of adverse possession by taking a plea of sham transaction. This plea of the Respondent is not only prohibited by the Benami Transactions (Prohibition) Act, 1988, but makes the Appellants absolute owner.
In the case of Guru Amarjit Singh v. Rattan Chand and Ors. [1993 (8) TMI 317 - Supreme Court], this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In the case of Jattu Ram v. Hakam Singh and Ors. [1993 (9) TMI 370 - Supreme Court], this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The Respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the Appellants in the revenue records.
The impugned judgment and order passed by the High Court is erroneous in law and suffers from infirmity and is required to be interfered with by this Court - Appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1383 - SUPREME COURT
Election of the RETURNED CANDIDATE - challenge on the grounds that the RETURNED CANDIDATE is guilty of commission of two corrupt practices falling under sub-sections (1) and (6) of Section 123 of the Representation of the People Act, 1951, i.e. (1) making appeal to the voters in the name of religion and bribery; and (2) incurring expenditure in contravention of Section 77 of the RP Act respectively - RETURNED CANDIDATE could not be served with the summons in the normal course by the High Court.
Whether the election petition was accompanied by an affidavit which is compliant with the requirement of statute under the proviso to Section 83(1)(c)?
HELD THAT:- When the appeals were argued before this Court on 20.08.2015, the ELECTION PETITIONER made a submission that two separate affidavits were filed along with the election petition and the High Court’s observation (supra) are based on an erroneous identification of the affidavit. The RETURNED CANDIDATE took a stand that there was no 2nd affidavit as alleged by the ELECTION PETITIONER in compliance with the proviso to Section 83(1) of the RP Act filed along with the election petition - The fact that the ELECTION PETITIONER chose to file yet another affidavit pursuant to the order dated 25.8.2014 is another circumstance sought to be relied upon by the RETURNED CANDIDATE in support of his submission that there was no second affidavit filed along with the election petition,
In the circumstances of the case, the inference such as the one suggested by the RETURNED CANDIDATE cannot be drawn because the ELECTION PETITIONER in his reply to the OR VII R 11 petition (specifically stating that he had filed an affidavit in Form 25 along with the election petition) took a stand by way of abundant caution that if the court comes to a conclusion that his affidavit is found to be defective for any reason, he is willing to file further affidavit to cure the defect. Unfortunately, the High Court took a shortcut without examining the question whether the affidavit at page nos.394- 395 satisfies the requirement of Form 25 and (without recording a definite finding in that regard) simply recorded a conclusion that the defect is curable and the same can be cured by filing an affidavit in the Form 25”.
Appeal dismissed.
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2016 (3) TMI 1375 - SUPREME COURT
Jurisdiction - power of Bar Council of India to prescribe an examination post enrollment of an advocate as a condition of eligibility for his continuing to practice at the Bar.
HELD THAT:- The questions that fall for determination are of considerable importance affecting the legal profession in general and need to be authoritatively answered by a Constitution Bench of this Court.
The matter is referred to a five-Judge Bench for consideration for determining the following questions:
(1) Whether Pre-enrollment training in terms of Bar Council of India Training Rules, 1995 framed under Section 24(3)(d) of the Advocates Act, 1961 could be validly prescribed by the Bar Council of India and if so whether the decision of this Court in Sudeer vs. Bar Council of India & Anr. [1999 (3) TMI 662 - SUPREME COURT] requires reconsideration.
(2) Whether a pre-enrollment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961.
(3) In case questions Nos.1 and 2 are answered in the negative whether a post-enrollment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1)(ah) of the Advocates Act, 1961.
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2016 (3) TMI 1369 - SUPREME COURT
Partition of ancestral property - right of grand-son in the properties of grand-father - birth right of grand son in the property or not - the property was ancestral and that no earlier partition between the brothers had in fact taken place - Section 8 of the Hindu Succession Act, 1956 - HELD THAT:- On the death of Jagannath Singh in 1973, the proviso to Section 6 would apply inasmuch as Jagannath Singh had left behind his widow, who was a Class I female heir. Equally, upon the application of explanation 1 to the said Section, a partition must be said to have been effected by operation of law immediately before his death. This being the case, it is clear that the plaintiff would be entitled to a share on this partition taking place in 1973. We were informed, however, that the plaintiff was born only in 1977, and that, for this reason, (his birth being after his grandfather’s death) obviously no such share could be allotted to him. Also, his case in the suit filed by him is not that he is entitled to this share but that he is entitled to a 1/8th share on dividing the joint family property between 8 co-sharers in 1998. What has therefore to be seen is whether the application of Section 8, in 1973, on the death of Jagannath Singh would make the joint family property in the hands of the father, uncles and the plaintiff no longer joint family property after the devolution of Jagannath Singh’s share, by application of Section 8, among his Class I heirs.
On the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants in common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.
Appeal dismissed.
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2016 (3) TMI 1363 - SUPREME COURT
Offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 - Effect of amendment - amendment in the Act by the Central Amendment Act 34 of 1976 whereby Section 16A was added and under the said section, only a fine is leviable, Rigorous imprisonment is dispensed with - HELD THAT:- In ’T. Barai v. Henry Ah Hoe and Another’ [1982 (12) TMI 186 - SUPREME COURT], this Court held that since the amendment was beneficial to the accused persons, it can be applied even with respect to earlier cases as well which are pending in the Court.
We have no doubt in mind that the aforesaid judgment squarely applies thereon - This appeal is, therefore, partly allowed and the sentence imposed upon the appellant is modified by imposing fine of ₹ 50,000/- which shall be deposited within two months with the trial court. On deposit of the aforesaid amount, the bail bonds furnished by the appellant shall be discharged.
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2016 (3) TMI 1327 - COMPETITION APPELLATE TRIBUNAL, NEW DELHI
Anti-Competitive Activities - interpretation of statute - meaning of 'Turnover' appearing in Section 27(b) of the Competition Act, 2002 - imposition of penalty under Section 27(b) or its proviso.
Whether the term 'turnover' appearing in Section 27(b) of the Competition Act, 2002 and its proviso means the total turnover of any enterprise or association of enterprises or person or association of persons, who may have entered into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services in violation of Section 3 of the Act or of an enterprise or a group which may be found guilty of abuse of dominant position within the meaning of Section 4? - Held that:- One of the well-recognized rules of interpretation of statutes is the rule of contextual interpretation. This rule requires that the Court should examine every word of a statute in its context. In doing so, the Court has to keep in view preamble of the statute, other provisions thereof, pari materia statutes, if any, and the mischief intended to be remedied. Context often provides the key to the meaning of the word and the sense it carries. Its setting gives colour to it and provides a cue to the intention of the legislature in using it.
The term 'turnover' used in Section 27(b) and its proviso will necessarily relate to the goods, products or services qua which finding of violation of Section 3 and/or Section 4 is recorded and while imposing penalty, the Commission cannot take average of the turnover of the last three preceding financial years in respect of other products, goods or services of an enterprise or associations of enterprises or a person or associations of persons. The definition of the term 'turnover' which includes value of sale of goods or services will necessarily mean the value of goods or services which are made subject-matter of investigation under Section 26 and order of punishment under Section 27. If the accusation/allegation relates to abuse of dominant position, then the Commission is required to take into consideration the factors enumerated in Section 19(4), (5), (6) and (7).
Whether while deciding the issue relating to imposition of penalty under Section 27(b) or its proviso, the Commission is required to follow some objective criteria and take into consideration factors like the nature of anti-competitive agreement and/or abuse of dominant position, appreciable adverse effect on competition, financial health of the enterprise and market condition? - Held that:- Proviso to Section 27(b) (unamended) was couched in a language, which made it mandatory for the Commission to impose on each producer, seller, distributor, trader or service provider included in a cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or 10% of the average of the turnover of the cartel for the last preceding three financial years, whichever was higher. It is thus clear that if the proviso to Section 27(b) had not been amended, then the Commission had no option but to impose penalty on each producer, seller, distributor, trader or service provider in cases involving formation of cartel. However, in its wisdom, Parliament amended the proviso and substituted the word 'shall' with the word 'may' - Since the legislature has not laid down any criteria for imposing penalty, the Commission is duty bound to consider all the relevant factors like - nature of industry, the age of industry, the nature of goods manufactured by it, the availability of competitors in the market and the financial health of the industry etc.
Unfortunately, the Commission has, while reiterating the penalty imposed on the appellants by the original order dated 24.02.2012, altogether ignored the principles laid down by the Supreme Court and the High Courts on the interpretation of statutes, which confer power upon the competent authority to impose penalty on a person who is found guilty of having acted in violation of the particular provision - Another error committed by the Commission is that even though it took cognisance of the mitigating factors highlighted by the appellants and others, it brushed aside the same simply because they were found guilty of forming a cartel and indulging in bid-rigging. The fact that many of the appellants were small scale units was also not given due weightage by the Commission while passing the impugned order.
The impression which we gather from the impugned order is that the Commission proceeded to decide the issue of penalty with a determination that the appellants who were found to be guilty of formation a cartel/collusive bidding must be punished so that others may learn a lesson from this. This approach is wholly inconsistent with the objective sought to be achieved by the Act, which is not only aimed at preventing practices having adverse effect on competition, but also to promote and sustain competition in market and to protect the interest of consumers. The Commission could not have over looked the fact that the appellants had reduced their rates after negotiations with IOCL and there was no evidence that they had made unwarranted profits by supplying cylinders at the particular rates.
The matter is again remitted to the Commission for deciding the issue relating to imposition of penalty under Section 27(b).
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2016 (3) TMI 1326 - COMPETITION APPELLATE TRIBUNAL , NEW DELHI
Anti-Competitive Activities - closure of proceedings of the case under Section 26(2) of the Competition Act, 2002 - discrimination followed by DGHS and ECHS between hospitals on the basis of their accreditation to the National Accreditation Board for Hospitals and healthcare providers (NABH) - appellant - informant has alleged that there is no scientific basis to this discrimination.
Whether DGHS and ECHS can be termed as 'enterprise' under Section 2(h) to make them liable under Sections 3 or 4 as the case may be?
Whether there has been any discrimination introduced by the fact of accreditation of hospitals to NABH by fixing higher rates for the accredited hospitals and thereby creating a discriminatory environment not based on sound reasons leading to abuse of dominance by Respondent Nos. 1 and 2?
Held that:- It can be clearly seen that CGHS is not just a facilitative mechanism but it also provides healthcare facilities by itself in the out-patient departments. In cases which require hospitalization or further specialized care, references are made to hospitals which are empanelled for the purpose. It is thus amply clear by its own admission that Respondent No. 1 is not just a facilitator for its target group to seek healthcare in empanelled hospitals but itself provides healthcare in its 273 allopathic dispensaries, 19 polyclinics, 73 labs and 85 Ayush hospitals. This network is further supplemented by private hospitals (648) and diagnostic centres (148). The last two are empanelled following a procedure given out in the Office Memorandum which has fixed differential rates for NABH accredited and non-accredited hospitals.
Central Government Health Scheme (CGHS) is a health scheme for serving/retired Central Government employees and their families." Further the DGHS is clearly in the nature of a service provider that does not perform a function which can be termed as inalienable, as explained in several cases referred above. It cannot be said to be performing a sovereign function and, therefore, warranting exclusion from the definition of enterprise. CGHS is clearly an enterprise which provides healthcare services to the target group and in order to do so, in view of the constraints on its capacity, it laterally complements its resources by empanelling hospitals which include private hospitals as well. Therefore, the process of empanelment is essentially an expansion of CGHS' activities of providing healthcare to the target group. It is not a facilitation but a clear provision of service.
The Commission has taken a simplistic view of the activities of a Government department and has erred in appreciation of the scope of the definition of enterprise.
Differential pricing for treatment/facilities provided by accredited and non-accredited hospitals - Held that:- Both sides did not dwell on the subject at length. Whether the differential pricing is justified or not or in what manner it creates alleged environment for abuse of dominance are matters of detailed investigation and this Tribunal would refrain from going into the same at this stage.
The matter is remitted to the Commission for reconsideration - the Commission would take a prima facie view on whether a case is made out for investigation under Section 26(1) recognizing that DGHS is covered under the definition of 'enterprise' under Section 2(h) of the Act.
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2016 (3) TMI 1324 - CALCUTTA HIGH COURT
Jurisdiction - Whether the Court has been denuded of power to grant interim relief to the appellant under Section 9 of the 1996 Act, from the date on which the Amendment Act of 2015 came into force, since an Arbitral Tribunal has been constituted, and arbitral proceedings have commenced?
Held that:- A careful reading of the provisions of the 1996 Act, and in particular Sections 21 and 32 thereof, makes it amply clear that the expression ‘arbitral proceedings’ in Section 26 of the Amendment Act of 2015 cannot be construed to include proceedings in a Court under the provisions of the 1996 Act, and definitely not any proceedings under Section 9 of the 1996 Act, instituted in a Court before a request for reference of disputes to arbitration is made.
The amendment Act of 2015, which came into force with effect from 23rd October, 2015, would apply to arbitral proceedings which commenced after 23rd October, 2015 but not to arbitral proceedings which commenced before 23rd October, 2015. The Amendment Act of 2015 would apply to all Court proceedings on and from 23rd October, 2015.
The power of the Arbitral Tribunal under Section 17 of the 1996 Act was always of the widest amplitude. From the inception, the Arbitral Tribunal had power under the 1996 Act to order a party to take any interim measure of protection, as the Arbitral Tribunal might consider necessary, in respect of the subject matter of the disputes. The Arbitral Tribunal, therefore, all along had all the powers of Court under Section 9 of the 1996 Act. The Amendments to Section 17 of the 1996 Act by the Amendment Act of 2015 are only clarifactory - It is a cardinal principle of construction that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation, but the rule in general is applicable when the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only. In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective, unless such a construction is textually inadmissible.
If, therefore, during the pendency of proceedings in the Civil Court, a new law is enacted, which is worded as to denude the Civil Court of jurisdiction except in specified circumstances, the Civil Court will be debarred from exercising jurisdiction unless the conditions precedent for exercise of jurisdiction by the Civil Court exist - In this case there are no such circumstances. However, considering that the application for interim relief had been entertained long before the amendment and an interim order had been in force, the Court might have passed limited interim relief and remitted the parties to proceedings under Section 17 before the Arbitral Tribunal.
The appeal and the application are disposed of accordingly.
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2016 (3) TMI 1323 - CALCUTTA HIGH COURT
Stay of operation of the arbitral award dated 25th July, 2014 - stay sought until disposal of his application filed under section 34 of the Arbitration and Conciliation Act, 1996 - Held that:- Perusing the substituted section 36 of the Arbitration and Conciliation Act, 1996, which has been introduced by the Arbitration and Conciliation (Amendment) Ordinance, 2015, it appears that this provision has no manner of application at all in view of the specific provision as contained under section 26 of the Arbitration and Conciliation (Amendment) Act, 2015.
Considering the fact that the arbitral proceedings, in the facts and circumstances of the instant case, commenced before the Amendment Act of 2015 came into operation i.e. on 23rd October, 2015, it was, perhaps, not necessary for the applicant to take out the instant application - no order is required to be passed in the instant application - application disposed off.
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2016 (3) TMI 1289 - ANDHRA PRADESH HIGH COURT
Offences punishable u/s 120-B r.w. 420, 409, 477-A IPC and Section 13(1)(C & D) of the Prevention of Corruption Act, 1988 - Whether the petitioner/A3-Srinivasan, being the Vice-Chairman and Managing Director of M/s. India Cements Limited (A7), be made personally liable for any acts of India Cements Limited with vicarious liability for the offences punishable under Sections 120-B read with 420 IPC and Section 12 of the Prevention of Corruption Act, by virtue of any statutory liability or legal fiction? - Held that:- When there is nothing to show judicial application of mind to the material on record in taking cognizance of the offences under Sections 420 & 120B IPC & Section 12 of the PC Act, so far as the petitioner/A3-Sri N. Srinivasan concerned, the cognizance taken by the special judge for CBI cases requires to be quashed for no basis to sustain the cognizance order from the material on record from what is elaborately discussed supra on facts and law.
Thus, the proceedings so far as petitioner/A3 concerned are liable to be quashed for above material on its face when can be held not sufficient to accuse in the police final report or to take cognizance by the learned Special Judge there from against the petitioner/A3 personally, to say no prima facie material to make him liable to face the ordeal of trial or even to frame charge against him from the prosecution material placed reliance with the police final report that is the criterion for the charge to be framed as per the settled expression of the Apex Court more particularly from the three Judge bench expression in State of Orissa v. Debendranath Padhi, (2005) 1 SCC 568, though so far as the quash petition concerned, the accused is also entitled to bring any additional material in asking the Court to receive to consider and the Court can receive to consider as held by referring to Debendranath Padhi's case (2004 (11) TMI 564 - SUPREME COURT), also in the subsequent expressions and in particular in Rukmini Narvekar v. Vijaya Satardekar [2008 (10) TMI 668 - SUPREME COURT]. Accordingly the points 1-3 are answered.
In the result the petition is allowed and the proceedings from the cognizance of the offences under Sections 420 and 120B IPC and Section 12 of the PC Act, taken by the Principal Special Judge for C.B.I. Cases, Red Hills, Nampally, Hyderabad so far as the petitioner/A3-Sri N. Srinivasan concerned are quashed for no basis to sustain. The bail bonds of the petitioner/A3-Sri N. Srinivasan if any shall stand cancelled. The miscellaneous petitions pending if any stand closed.
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2016 (3) TMI 1283 - CALCUTTA HIGH COURT (APPELLETE SIDE)
Bail Application - Section 3 read with Section 17(1)(2) of Prevention of Money Laundering Act, 2002 - time limitation to grant Bail - Held that: - the words used in the non obstante clause are of restrictive nature and clearly indicative of its scope of operation.
The power to grant bail under Section 439 is not restricted by the limitations engrafted under Section 45 of the Act. In this perspective, if one examines the materials collected in the course of investigation as reflected in the subsequent complaint, I find that there are sufficient materials on record, which show that the petitioner as a Senior Field Officer had played a role in monitoring the activities of the agents of the company in dealing with the proceeds of crime which had accrued in the credit of the company pursuant to the commission of the scheduled offence for which prosecution has been launched against the said company.
From the uncontroverted accusations it appears that the petitioner as a senior field officer knowingly monitored the activities of the agents of the accused company to secret the proceeds of crime and assiduously wanted to create an opinion that such assets constituted 'untainted money' in the hands of the accused company or its agents - It is not possible for a reasonable man of ordinary prudence to come to a conclusion at this stage that the petitioner is not guilty of the aforesaid offence. In the absence of such a conclusion, the limitations of Section 45 applies with full force restricting my discretion to grant bail under Section 439 of the Code of Criminal Procedure.
It is true that the petitioner is in custody for 268 days, but in view of the materials on record prima facie connecting him with the commission of offence punishable under Section 3 of the P.M.L. Act read with Section 70(1) of the said Act and bearing in mind the restrictions engrafting in Section 45 thereof, I am unable to accede to the prayer for bail of the petitioner at this stage - Bail application rejected.
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2016 (3) TMI 1255 - SUPREME COURT
Transfer of title in favour of the nominee - case of a valid nomination under Section 79 of the 1983 Act - inheritors or successors to the property of the deceased - member of 'the Cooperative Society' requirment to nominate a person in whose favour 'the Cooperative Society' would dispose of the share or interest of the member “on his death” - Held that:- As is postulated under Section 79 of the 1983 Act, Rule 127 of the 1987 Rules provides, that if a nomination has been made by a member under Section 79, the share or interest or the value of such share or interest standing in the name of the deceased member, would be transferred to the nominee.
Rule 127 postulates nomination only in favour of a person “belonging to his family”. It is not necessary for us to deal with the issue whether the appellant – Indrani Wahi, being a married daughter of the original member – Biswa Ranjan Sengupta, could be treated as a member of the family, of the deceased member (Biswa Ranjan Sengupta), because the learned Single Judge, as also, the Division Bench of the High Court concluded, that the appellant – Indrani Wahi was a member of the family, of the original member - Biswa Ranjan Sengupta. This conclusion has not been assailed by the respondents, before this Court.
Rule 128 of the 1987 Rules also leads to the same inference. Inasmuch as Rule 128 aforementioned provides, that only in the absence of a nominee, the transfer of the share or interest of the erstwhile member, would be made on the basis of a claim supported by an order of probate, a letter of administration or a succession certificate (issued by a Court of competent jurisdiction).
Insofar as the instant aspect of the matter is concerned, there is no doubt in our mind, that even Rules 127 and 128 of the 1987 Rules, lead to the inference, that in case of a valid nomination, under Section 79 of the 1983 Act, 'the Cooperative Society' is liable to transfer the share or interest of a member in the name of the nominee. We hold accordingly.
Having recorded the above conclusion, it is imperative for us to deal with the conclusion recorded in paragraph 6 (already extracted above) of the judgment of this Court in the Usha Ranjan Bhattacharjee case (1997 (3) TMI 621 - SUPREME COURT OF INDIA ). In this behalf, it is necessary to clarify that transfer of share or interest, based on a nomination under Section 79 in favour of the nominee, is with reference to the concerned Cooperative Society, and is binding on the said society. The Cooperative Society has no option whatsoever, except to transfer the membership in the name of the nominee, in consonance with Sections 79 and 80 of the 1983 Act (read with Rules 127 and 128 of the 1987 Rules). That, would have no relevance to the issue of title between the inheritors or successors to the property of the deceased. Insofar as the present controversy is concerned, we therefore hereby direct `the Cooperative Society' to transfer the share or interest of the society in favour of the appellant – Indrani Wahi. It shall however, be open to the other members of the family (presently only the son of Biswa Ranjan Sengupta – Dhruba Jyoti Sengupta; we are informed that his mother – Parul Sengupta has died), to pursue his case of succession or inheritance, if he is so advised, in consonance with law. Appeal stands allowed in the above terms.
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2016 (3) TMI 1244 - SC ORDER
Temporary injunction - Restriction on transferability of the equity shares holding by the Opposite Party No. 1 under the said agreement - Held that:- HC has held since this Court does not find the existence of a prima facie case having made out in application for temporary injunction in view of the findings recorded hereinabove, there is no infirmity and / or illegality in the impugned order by which an application for temporary injunction is rejected by this Trial Court. [2015 (10) TMI 2659 - CALCUTTA HIGH COURT]
Learned counsel for the petitioners seeks permission of the Court to withdraw the special leave petition. Permission sought for is granted.
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2016 (3) TMI 1243 - HIGH COURT OF PUNJAB AND HARYANA
Action of removal of the petitioner from membership of the NFI and appointment of the ad-hoc committee - Competition Director eligigiblity to pass order - Held that:- Competition Director, who had passed the order of removal of the petitioner from the membership of the NFI on an un-dated letter, had no jurisdiction much-less competence to pass such an order. However, the question would be as to whether the said action taken by the Competition Director has rightly been affirmed/ratified in the Annual General Meeting, which was held on 29.03.2015.
The respondents did not include the item of removal of the petitioner from the membership in the agenda though it was an important agenda item which should have been specifically mentioned and circulated to the members so that they could have come prepared for deliberations and voting on the said agenda item and it could not have been taken up under the miscellaneous head because the miscellaneous head is only meant for those items which are emergent in nature and are not known at the time of preparation of agenda, whereas the Competition Director had handed over his letter dated 03.02.2015 to the NFI and the agenda for the Annual General Meeting was prepared on 08.03.2015, almost after a month, therefore, there was no reason for the respondents to have excluded the agenda item pertaining to removal of the petitioner from the membership of the NFI so that the General Council could have deliberated upon it before voting. The respondents have also violated the principle of natural justice as no opportunity of hearing much-less show cause notice was given before its removal from the membership.
Thus, the action of removal of the petitioner from membership of the NFI and appointment of the ad-hoc committee is totally illegal and hence, the fifth petition is also allowed, as prayed for.
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2016 (3) TMI 1234 - MADRAS HIGH COURT
Validity of Show cause notice issued by Estate Officer, Assistant Commissioner of Police, City Crime Record Bureau, Tirunelveli City - Held that:- Show cause notice, dated 11.12.2015, issued under Section 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 (Tamil Nadu Act I of 1976) in our view, does not call for any interference. There is no manifest error, in issuing a show cause notice. The impugned order of the Writ Court is sustained.
The only course open to the party-in-person is, to submit his reply to the show cause notice. Hence, while dismissing the appeal, we permit the party-in-person, to submit his reply, to the show cause notice, within the time provided therefore.
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2016 (3) TMI 1217 - SUPREME COURT
Constitutional validity of the Land Acquisition (Goa Amendment) Act, 2009 challenged - repugnancy between the principal legislation (Land Acquisition Act) and the State Amendment - Held that:- Section 41(6) to (9) introduced in the Principal Act by the Goa State Amendment renders ineffective Clause 4(viii) of the Agreement executed by the parties under Section 41 of the Principal Act. With Clause 4(viii) being deleted the embargo on constructions on the acquired land is removed. It is the aforesaid Clause 4(viii) and its legal effect, in view of Section 42, that was the basis of the Court’s decision dated 20th January, 2009 holding the construction raised by the third respondent on the acquired land to be illegal and contrary to the Principal Act. Once Clause 4(viii) is removed the basis of the earlier judgment stands extinguished. In fact, it may be possible to say that if Clause 4(viii) had not existed at all, the judgment of the Court dated 20th January, 2009 would not have been forthcoming. It was therefore well within the domain of the legislature to bring about the Amendment Act with retrospective effect, the Legislative field also being in the Concurrent List, namely, Entry No. 42 of List III (Acquisition and Requisition of Property) of the Seventh Schedule to the Constitution.
Section 41 of the Principal Act and the terms of the agreement executed thereunder (even if the latter is understood to be ‘Law’ enacted by the competent legislature for the purpose of Article 254) are silent with regard to modification/variation or deletion/subtraction of the terms of the agreement. The State Amendment Act by bringing in Sub-sections (6) to (9) of Section 41 invalidates a clause of the agreement [Clause 4(viii)] by effecting a deletion thereof with retrospective effect i.e. 15.10.1964 (the date of coming into operation of the Principal Act to the State of Goa). The State Amendment, by no means, sets the law in a collision course with the Central/Principal enactment. Rather, it may seem to be making certain additional provisions to provide for something that is not barred under the Principal Act.
If the provisions of the State Amendment are to be tested on the anvil of the finding of this Court that the acquisition in the present case is under Section 40(1)(aa) of the Land Acquisition Act, the deletion of the relevant clause of the agreement as made by the said amendment may appear to be really in furtherance of the purpose of the acquisition under the Central Act. We, therefore, do not find any repugnancy between the Principal Act and the State Amendment, as urged on behalf of the petitioners in this case.
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2016 (3) TMI 1144 - BOMBAY HIGH COURT
Responsibility of banks to verify whether proper stamp duty has been paid on all instruments executed - can bank officers can be adjudicating officers under the stamp act - Validity of Maharashtra Tax Laws (Levy and Amendment) Act, 2013 insofar as it enacts the Stamp Act Amendment (Exhibit A) - whether ultra vires and void on account of being viiolative of Article 14 of the Constitution and being beyond the legislative competence and power of the Stte Legislature and also for being vague, arbitrary and irrational and be pleased to quash the same - Held that:- We do not see how by the obligation under the Banking Stamp Act, 1958, which is extremely limited and restricted and equally in public interest can it be said that the State legislature has overreached or has taken over taken over or interfered with the field occupied by the Banking Regulation Act, 1949
Once there is a wide discretion and latitude in the Legislature, then, it would be apparent that the financial institutions such as banks, non-banking financial company, housing finance company or alike deal with large number of instruments. These instruments are in favour of or executed by such entities. It came to the notice of the State that in relation to such instruments and which are of the nature referred to in clause (a) to (g) of section 30, the proper stamp duty has not been collected. Therefore, section 30A was inserted by Maharashtra Act No.8 of 2013 with effect from 1st May, 2013. The Statement of Objects and Reasons to this amendment would indicate as to how there was a revenue loss.
We find that both sections of the Maharashtra Stamp Act, 1958, and the Registration Act, 1908, read and understood so also interpreted in the above manner need not be struck down.
While arriving at the above conclusion, we have taken the aid and assistance of the very principles which have been pressed into service by Mr. Tulzapurkar. We need not advert to each and every judgment relied upon by counsel. We have referred to the very principles and which are enunciated in the case of State of Madhya Pradesh vs. Rakesh Kohli & Anr. (2012 (5) TMI 262 - SUPREME COURT OF INDIA ) about constitutional validity of taxing statutes.
We are not in agreement with Mr. Tulzapurkar that the provisions of the Stamp Act and particularly, section 30A need to be struck down on the anvil that they violate the mandate of Articles 14, 19(1)(g) and 300A of the Constitution of India. We do not think that section 30A is in any way on par with section 73 of the Andhra Act which was under consideration in the case of District Registrar and Collector, Hyderabad vs. Canara Bank [2004 (11) TMI 569 - SUPREME COURT ].
Nonetheless, none of the principles that we have referred above would run counter to the paragraphs in this judgment and heavily relied upon by Mr. Tulzapurkar. When the banks and financial institutions are not required to perform the functions of the nature enunciated in this judgment, then, we need not refer to it any further. - Writ petitions dismissed - Decided against the banks.
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