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Indian Laws - Case Laws
Showing 1 to 20 of 63 Records
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2021 (7) TMI 1449
Seeking to recall the complainant Sujata Sutar, to prove the memory card seized in the present case - Section 311 of the Code of Criminal Procedure (Cr.P.C.) - HELD THAT:- No doubt, under Section 311 Cr.P.C., any Court may, at any stage of any inquiry, trial or other proceeding summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, if it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacunae in the prosecution evidence. Having regard to the peculiar facts of this case that the impugned order issuing witness summons for recalling the complainant and panch was passed after arguments were advanced and written submissions were filed, on the aspect of memory card not being proved, it was not permissible for the learned Judge to pass the impugned order. The same, in the facts, would clearly tantamount to filling up the lacunae in the case. It would also result in causing serious prejudice to the petitioner.
The impugned order dated 2nd February 2021 passed by the learned Additional Sessions Judge, Pune, below Exhibit 1 in Special Case (ACB) No. 70 of 2015, is quashed and set-aside - petition allowed.
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2021 (7) TMI 1444
Clubbing of all the FIRs pertaining to Bike Bot Scheme scam, wherein the petitioner has since been arrayed as an accused along with other accused - allegation against the petitioner is that the investors amount of the Bike Bot Scheme scam launched by GIPL has been diverted to the petitioner's company - HELD THAT:- The High Court has prima facie held that the application said to have been moved by the petitioner's company, does not bear the signature of the person named in the FIR and the said person had resigned from the post of Director prior to the date of moving the application and the commercial space has been allotted by the petitioner in favour of M/s. GIPA and the sister concern and the possession of commercial space has also been taken. It is further noted by the High Court that the allotted premises is reportedly attached by the Enforcement Directorate in the proceedings started against the main accused but accounts of the petitioner's company has not been attached.
Taking totality of the circumstances and the fact that the petitioner has been in jail for quite some time (since December, 2020) in connection with the FIRs in question, we find no reason to depart from the bail orders granted by the High Court of Judicature at Allahabad, in two registered criminal cases, referred to above and direct that the petitioner shall be released on bail with respect to all the FIRs emanating from Bike Bot Scheme scam registered within the jurisdiction of the State of U.P. or NCT of Delhi, as the case may be, or at any other place, which is not known to the petitioner, for the time being.
The petitioner shall be released on bail on the same terms and conditions in connection with all FIRs as ordered by the High Court of Judicature at Allahabad - Bail application allowed.
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2021 (7) TMI 1443
Enhancement of age of superannuation of its employees from fifty-eight to sixty years - whether the High Court has transcended the limits of its power of judicial review? - HELD THAT:- Since the enhancement of the age of superannuation is a 'public function' channelised by the provisions of the statute and the service Regulations, the doctrine of promissory estoppel cannot be used to challenge the action of NOIDA. Though NOIDA sought the approval of the State government for the enhancement with 'immediate effect', it never intended or portrayed to have intended to give retrospective effect to the prospectively applicable Government order. The representation of NOIDA could not have given rise to a legitimate expectation since it was a mere recommendation which was subject to the approval of the State Government. Hence, the doctrine of legitimate expectation also finds no application to the facts of the present case.
In STATE OF UTTAR PRADESH VERSUS DAYANAND CHAKRAWARTY AND ORS [2013 (7) TMI 1222 - SUPREME COURT] the court directed payment of arrears deeming the employees to have worked till sixty years in spite of no interim order being issued in that regard because (i) the Office Memorandum was held ultra vires; (ii) Harwinder Kumar, Jaswant Singh, and Radhey Shyam Gautam had already held that the age of retirement of the Jal Nigam employees shall be 60 years unless a Regulation prescribing a lower retirement age is issued in terms of Regulation 31, and had extended this benefit to all the parties who had filed writ petitions. Therefore, the above observation must be read in the context of the distinct factual situation in the case.
The argument of the employees that since they had moved the Chief Minister with a representation in August 2012 before their date of superannuation which was to fall at the end of the month and that they should have the benefit of the enhancement in the age of superannuation has no substance. On 31 August 2012, the Respondents moved the High Court but no interim relief was granted to them and they attained the age of superannuation. They have not worked in service thereafter. Since the High Court's judgment dismissing the challenge to the government order dated 30 September 2012 has attained finality, the submission cannot be accepted.
The impugned judgment and order of the Division Bench at Lucknow of the High Court of Judicature at Allahabad is set aside - petition dismissed.
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2021 (7) TMI 1435
Decree for Suit for money based on cheques - amount of Rupees 6 lakhs borrowed from the plaintiff during 2006-07 - issuance of a letter of acknowledgement to plaintiff as contended by plaintiff - realisation of amount claimed in the plaint from the defendant - whether entering the dates in the cheques, duly filled up in all other respects and also signed would amount to material alteration as contended by the learned counsel for the defendant? - HELD THAT:- In the case on hand the handing over of the cheques by the defendant as admitted by him, under the provision, confer the person receiving it, a prima facie authority to make or complete those. Therefore, since the defendant has handed over the six signed cheques even with entries other than the figure showing the money filled up, as holder of it the plaintiff is given prima facie authority by Section 20 of the N.I. Act to complete it. Therefore, the argument that by entering the dates in the cheques, the plaintiff has materially altered the cheques will not sustain and is discarded.
The plaintiff has established before the trial court that the cheques on presentation for encashment were bounced and the factum of dishonour was duly informed to the defendant by serving lawyer notices. Strictly no materials are forthcoming to establish any repayment towards the interest or the principal sum borrowed. The plaintiff has tendered oral evidence to establish his claim for realisation of money. He has also produced relevant documentary evidence to justify his claim.
In the case on hand the specific stand of the defendant was that dates have not been written in the cheques and the plaintiff has put it prior to presentation of those. The plaintiff has a contra claim. Even if the defendant's version is accepted as true, the filling up of the dates in an otherwise filled and signed cheque, not being material alteration, will not invalidate it. The plaintiff being the holder of the cheques undoubtedly has lawful authority to fill the blank entry under Section 20 N.I. Act - A scrutiny of the evidence on record convinces this Court that the trial court had a true and proper appreciation of evidence and cannot be found fault with in decreeing the suit. Interference is totally unwarranted.
Appeal dismissed.
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2021 (7) TMI 1431
Extension of Time to furnish reply - HELD THAT:- The letter dated 27th July, 2021 issued by the advocates of the respondent no.1 to the advocates of the petitioner offering inspection of certain documents at Delhi, accepted.
Time to furnish reply to the notice under Section 13(2) of the Securitization and Re-construction of Financial Assets and Enforcement Security Interest Act, 2002 is extended till 31st August, 2021.
Petition disposed off.
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2021 (7) TMI 1430
Maintainability of appeal - Condonation of delay in filing appeal - whether a claim made by one against the other and controverted by the other, on adjudication thereof, whether by the Court or by the Arbitrator, ceases to be a "dispute", for it to be said that the proceedings for execution of adjudication of a commercial dispute, whether by way of a decree or an arbitral award, do not qualify as a "dispute"?
Maintainability of appeal - HELD THAT:- The amendment to Section 13, while splitting up the erstwhile sub-section (1) of Section 13 into two subsections, 13(1) and 13(1A) as aforesaid, did not alter the proviso thereto, and the amended proviso is in pari materia to erstwhile proviso to Section 13(1). Though in Delhi there are no Commercial Courts below the level of the District Judge but since both, Section 13(1) and Section 13(1A) provide for appeals arising from commercial disputes and there being nothing in the proviso to indicate that the same is applicable only to Section 13(1A), it is concluded that the proviso applies to both, Section 13(1) as well as Section 13(1A).
The subject matter of arbitration in the present case was a commercial dispute of a specified value, within the meaning of Section 10 of the Arbitration Act. To be fair to the senior counsels for the judgment debtors, they did not seriously controvert the aforesaid. Their contention however was that since this appeal does not arise out of arbitration under the provisions of the Arbitration Act, within the meaning of Section 10(2) of the Arbitration Act, the execution was not within the jurisdiction of the Commercial Division and the appeal thereagainst does not lie to the Commercial Appellate Division, under Section 13 of the Commercial Courts Act. It was further contended that the Arbitration Act is concerned only with the arbitration proceedings and challenge to the arbitral award and is not concerned with execution of the arbitral award, with the Act, in Section 36 merely providing for the award to be executed as a decree of the Civil Court in accordance with the provisions of the CPC. It was contended that the Execution Petition is thus not an application arising out of arbitration under the Arbitration Act, to be entertained by the Commercial Division of this Court - Needless to state, this question also was not raised before and has not been considered by the Commercial Division in any of the orders in the subject execution proceedings.
Whether Execution Petitions are "applications" within the meaning of Sections 10, 12, 6 and 7 of the Commercial Courts Act? - HELD THAT:- A claimant in a dispute is not interested merely in adjudication thereof. The claimant is interested in delivery to him, of what he claims to be due and what has been adjudicated to be due to him from the opposite party - To hold that the Commercial Courts/Commercial Divisions would not have jurisdiction over applications for execution of a judgment or decree or for enforcement of an arbitral award, subject matter whereof was a commercial dispute, would in our opinion sound the death knell for the objective behind setting up of the Commercial Courts and the Commercial Divisions.
Order XXI Rule 11(2) of the CPC provides that every 'application' for execution of a decree shall be in writing, signed and verified. Thus the CPC, in accordance wherewith an arbitral award is to be executed/enforced, envisages such execution to be by way of an 'application' and since the jurisdiction of the Commercial Courts/Commercial Divisions extends vide Sections 6 and 7 of the Commercial Courts Act extends, besides over suits, also over applications relating to commercial disputes, such jurisdiction would also extend over execution applications - Execution of a decree of the Court, per Section 38 of the CPC, has to be by the same Court which passed the decree. Since the jurisdiction over arbitrations subject matter whereof is a commercial dispute, is of the Commercial Courts/Commercial Divisions, applying Section 38 of the CPC, the jurisdiction for enforcement of awards of arbitration subject matter whereof is a commercial dispute, has to be of the Commercial Courts/Commercial Divisions.
It is not as if Order XLIII of the CPC, to orders specified wherein the right of appeal against orders is confined by the proviso after Section 13(1A), does not cater to any orders in the course of an execution. Order XLIII Rule 1(j) and (ja) provide for appeals against orders passed in the course of an execution proceeding. Of course, an order under Order XXI Rule 41 is not covered therein but in view of the dicta of this Court in D & H INDIA LTD. VERSUS SUPERON SCHWEISSTECHNIK INDIA LTD. [2020 (3) TMI 1458 - DELHI HIGH COURT]], the appeal against such an order would also be maintainable.
Applicability of M/S BHANDARI ENGINEERS & BUILDERS PVT LTD VERSUS M/S MAHARIA RAJ JOINT VENTURE, M/S YOU ONE MAHARIA (JV) DELHI & ORS. [2020 (8) TMI 933 - DELHI HIGH COURT] - HELD THAT:- The first source of power referred to, is Section 151 of the CPC. Section 151 however merely saves the inherent power of the Court and provides that nothing in the CPC shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The exercise of power under Section 151 is however restricted to the facts of a particular case before the Court and does not extend to issuing any general direction, to be abided by all courts in all cases of execution of money decree. Thus, in exercise of power under Section 151, the Court, in Bhandari Engineers & Builders Pvt. Ltd. supra, could have made/pass order/s only to meet the ends of justice or to prevent the abuse of the process of Court, in the facts of that case and could not have issued a mandate or direction of a general nature.
For the Court/Commercial Division in Bhandari Engineers & Builders Pvt. Ltd., to exercise powers under Section 151 of the CPC, it was necessary for the Court/Commercial Division to first hold that there was no provision in the CPC or any other law to meet the exigency which had arisen.
Not only did the Commercial Division in Bhandari Engineers & Builders Pvt. Ltd. not hold so but has itself in the judgment referred to Order XXI Rule 41 of the CPC and rather identified that also as a source of power to do what has been done therein. Order XXI Rule 41 read with Form 16A in Appendix-E of the CPC and Order XLVIII Rule 3 of the CPC are precisely for the same exigency with which the learned Judge in Bhandari Engineers & Builders Pvt. Ltd. was concerned i.e. holder of a money decree being unaware of the assets of the judgment debtor. Order XXI Rule 41 of the CPC enables such a decree holder to apply thereunder to the Court for a direction to the judgment debtor to disclose his assets and further empowers the Court to direct the judgment debtor to disclose his assets in Form 16A in Appendix-E of the CPC. Though Order XLVIII Rule 3 permits the Court to order variation in the forms given in the appendices to CPC but only to the extent "as the circumstances of each case may require".
Inherent jurisdiction of the Court must be exercised subject to the Rule that if the Code does contain specific provisions which would meet the necessities of the case, such provision should be followed and inherent jurisdiction should not be invoked. Section 151 cannot be invoked where a party has his remedy provided in the Code and has neglected to avail himself of the same.
The next Source of power relied upon by the Court in Bhandari Engineers & Builders Pvt. Ltd, is Sections 106 and 165 of the Indian Evidence Act. Section 106 provides that where any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person. Section 165 empowers the Court to ask any question at any time to any party about any fact relevant or irrelevant. The powers under the said provisions also, are to be exercised in the facts of a particular case and do not extend to issuing a general direction. The powers under Section 106 and 165 of the Evidence Act have to be construed harmoniously with the provisions of the CPC - The Court, in Bhandari Engineers & Builders Pvt. Ltd. has lastly drawn power from Article 227 of the Constitution of India, to issue the directions as issued therein. Article 227 vests in every High Court, the power of superintendence over all Courts and Tribunals throughout its territory, in relation to which it exercises jurisdiction and to make and issue general rules and prescribe format for regulating the practice and proceedings of such Court.
Bhandari Engineers & Builders Pvt. Ltd., to the extent extends what is laid down therein to execution proceedings pertaining to all money decrees and to all courts executing a money decree, cannot said to be good law. Axiomatically, what is held in Bhandari Engineers & Builders Pvt. Ltd. could not have been followed in the execution proceedings from which this appeal arises - Once it is so, the impugned orders have no other reason whatsoever for directing the judgment debtors to file the affidavits and which are liable to be set aside on this ground alone.
As per the existing provisions of Order XXI Rule 41 of the CPC, the Commercial Division, in our view erred in issuing direction to judgment debtors to file affidavits and affidavits in a form other than as prescribed in the CPC. The impugned orders do not record that the decree holder had applied therefor, verbally or in writing. A direction under Order XXI Rule 41 could not have been issued without the decree holder applying therefor - No merit is found in the contention of the counsel for the respondent no. 1/decree holder, that the judgment debtors having not challenged the order dated 3rd December, 2019, are not entitled to challenge the subsequent orders. The order dated 3rd December, 2019 stood substituted by the order dated 23rd December, 2019 and not challenging the order dated 3rd December, 2019 which ceased to exist, cannot deprive the judgment debtors from challenging the order dated 23rd December, 2019.
The impugned orders, to the extent directing the judgment debtors to file additional affidavits or for that matter affidavits in any form, in exercise of powers under Order XXI Rule 41 of the CPC, are set aside - Appeal disposed off.
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2021 (7) TMI 1422
Seeking grant of Interim Bail - seizure of contraband item - non-compliance of Section 52-A of the NDPS Act - HELD THAT:- It is manifest from Section 52-A(2)(c) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory,(b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
Section 52A was inserted by the Amendment Act of 1989 w.e.f. 29th May, 1989.The provision relates to the disposal of the seized narcotic drugs and psychotropic substance and Section 52A (1) provides that the Central Government may having regard to hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to their substitution, constraints of proper storage space or any other relevant consideration by notification published in the Official Gazette, specify the narcotic drugs or psychotropic substance which may as soon as after their seizure be disposed of by such officer. Thus the provision relates to disposal of the drug after the same is seized so as to rule out substitution, misuse and being hazardous. It is not unknown that applications under Section 52A NDPS Act are also filed at the stage of appeal seeking permission of the Court to dispose of the narcotic drugs and psychotropic substance.
By this petition, petitioner seeks bail on the ground of non-compliance of Section52A of the NDPS Act, however, in view of the fact that the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing a appropriate charge-sheet before the Special Court for as certaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during the course of trial, hence this Court finds no ground to grant bail to the petitioner on this ground.
As regards the prayer of the petitioner seeking interim bail on the ground that his wife is suffering, the petitioner has enclosed copy of the discharge summary of his wife Ms. Rekha Yadav, who had been advised cervicotrochanteric fracture right hip for which the surgery was performed in September, 2020 and as per the report received the patient has already recovered from the injury and the surgery and is stable. Further the petitioner has surrendered on 31st March, 2021 and thus had adequate time to take care of his wife. As regards the petitioner's medical condition is concerned, the documents on record do no suggest any immediate medical treatment or hospitalization. Thus this Court finds no ground to grant interim bail as well to the petitioner.
Petition dismissed.
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2021 (7) TMI 1414
Whether the period of limitation as mentioned in the Scheme would be applicable in the present case or the general limitation of 3 years would apply for assertion of claim? - HELD THAT:- It is submitted that the petitioner is ready to pay the amount to the respondents/claimants but this question of law may be decided. He states that the payment shall be made to the respondents/claimants within four weeks from today and proof of making such payment shall be filed in this Court.
List for further orders in the Week commencing 9th August, 2021.
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2021 (7) TMI 1413
Seeking withdrawal of the petition - HELD THAT:- Placing the submission of learned Advocate for the petitioner on record, petition is dismissed as withdrawn.
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2021 (7) TMI 1405
Dishonour of Cheque - compoundable offence or not - amicable settlement of disputes - trial for offence under Sections 406, 409, 420, 506(i) r/w 34 IPC - HELD THAT:- In this case, the victims handed over money to the 2nd respondent/LW1 directly to get job from the Transport Department and some through LW2, LW3, LW4, LW5 and LW6. All these persons categorically stated that along with money, they handed over the Interview Call Letter. The 2nd respondent/LW1 stated that he had contact with A4, who represented to him that he knew A3, the Personal Assistant of A1, the former Transport Minister. LW2 to LW6 handed over the money to the 2nd respondent/LW1 and other aspirants have never met the 2nd respondent/LW1. In order to confirm the job, the 2nd respondent/LW1 went along with A4 and met A3, who received the money and promised that within a week the appointment order will be issued - When the cash balance were verified with the bank, it was found that no sufficient balance in the account of A4. In this case, the 2nd respondent/LW1 and A4 are the persons who had been in constant touch with each other during the transactions and involved themselves in the process of getting appointment orders. As regards A1 and A2 are concerned, they had given assurance that the appointment order would be issued to the victims, but there is no material to show that A1 and A2 directly involved in the transactions. The other victims namely LW7 to LW11 did not handover the cash to the accused seeking job. It was to LW1. Further, in this case, the appointment orders or any other documents in respect of the transaction were not produced. Hence, the allegations seems to be general and vague in nature.
The case is still at the stage of trial. By passage of time, the parties have decided to bury their hatchet and compromised the dispute amicably among themselves. This Court enquired both the parties and is satisfied that the parties have come to an amicable settlement between themselves. Thus, no useful purpose would be achieved by keeping the above case pending.
Thus, no useful purpose will be served in this case, even though the offences involved are not compoundable in nature - petition allowed.
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2021 (7) TMI 1395
Power of the High Court in exercising extraordinary writ jurisdiction under Article 226 - assessment of conflicting technical reports - removal / repair of the wall of the adjoining property - The Appellant submits that, the structures being interlinked, structural repair of any one structure would affect the stability of the adjacent structure.
HELD THAT:- the High Court has committed a serious error in directing removal of a wall with the assistance of M/s. Shetgiri and Associates, when there were conflicting reports including an earlier report of the Technical Advisory Committee on the basis of the opinions of other Architects, declaring the building to be of the C-1 category.
It is well settled that the High Court exercising its extraordinary writ jurisdiction Under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable.
It is not understood how the High Court could have been satisfied that the stability of the building could be restored by repair in the manner directed. The High Court patently erred in passing the impugned order. The impugned order cannot be sustained.
The appeal is, accordingly, allowed, for the reasons discussed above. The impugned final judgment and order is set aside and the writ petition is dismissed.
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2021 (7) TMI 1392
Doctrine/principle of pristine Hindu law - privity of contract between the respondents and the petitioner or not - whether the basic principles of the laws relating to partnerships and contracts will not apply when one of the contracting parties is the State? - HELD THAT:- The undisclosed principal in the present case is the partnership firm represented by the petitioner. In the light of the agreement executed between the respondents and Smt. P. Syamala, the respondents cannot contend that she had executed the document with any intention to bind the firm or in her capacity as a partner of the firm. This is all the more evident from the reading of Ext.R4(a) which had preceded the agreement. Even though in Ext.R4(a) the legal heirs of Late Sathyapalan had expressed the willingness of the firm to carry out the work, the respondents chose to execute the agreement with Smt. P. Syamala in her individual capacity. As such, neither Smt. P. Syamala nor the respondents have intended the agreement to bind the firm. It follows therefore that no liability alleged to have been incurred as a result of Ext.P6 agreement can be fastened on the petitioner.
Whether the partnership assets can be made liable for a debt allegedly owed by a partner? - HELD THAT:- There can be no doubt that if a partner owes any money, the creditor will be entitled to proceed against the profits that may be earned by the debtor, in his capacity as a partner of a firm or against the debtors' interest in the partnership firm. In the case on hand, Smt. P. Syamala had retired from the partnership as can be seen from Ext.P4 deed dated 31.03.2013, whereby the partnership was reconstituted. There is nothing in the pleadings of the parties to show that the retiring partner had any rights subsisting in the partnership, on the date of issuance of Ext.P3 letter by the Assistant Executing Engineer, proposing to withhold the amounts due to the firm, towards the risk and cost liability of Smt. P. Syamala. Ext.P3 proceeds on the basis that Smt. P. Syamala is a partner of the firm, which does not appear to be correct on the basis of Ext.P4 deed - Since the question whether Smt. P. Syamala has any "cost and risk" liability to the respondents is admittedly pending consideration of the competent civil court, it is not necessary in these proceedings to go into the question as to the modes of recovery that can be resorted to by the respondents, if they are able to succeed in the civil court.
The decision contained in Ext.P3 to withhold the payment due to the petitioner's firm is set aside. There will be a direction to the respondents to release the credit received in favour of the petitioner's firm for payment of CC8 and final bill amounting to Rs. 30,01,268/- immediately, at any rate within a period of one month from the date of receipt of a certified copy of this judgment - the writ petition is allowed.
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2021 (7) TMI 1343
Interpretation of statute - Jurisdiction - power of a court to modify an award - whether the power of a court under Section 34 of the Arbitration and Conciliation Act, 1996 [Arbitration Act] to set aside an award of an arbitrator would include the power to modify such an award? - HELD THAT:- In the present case, a notification designating a Special District Revenue Officer as the competent authority has been made. The amount determined by the aforesaid authority has then to be sent to an arbitrator, on application by either of the parties. What is important to remember is that the aforesaid arbitration is not a consensual process with both parties having a hand in appointing the arbitrator. As a matter of fact, the land owner has no say in the appointment of the arbitrator, who is to be appointed only by the acquiring authority, that is the Central Government.
It is settled law that a Section 34 proceeding does not contain any challenge on the merits of the award.
There can be no doubt that given the law laid down by this Court, Section 34 of the Arbitration Act, 1996 cannot be held to include within it a power to modify an award.
In KRISHNA BHAGYA JALA NIGAM LTD. VERSUS G. HARISCHANDRA REDDY & ANR. [2007 (1) TMI 498 - SUPREME COURT], a judgment of this Court referred to in para 36, this Court reduced the rate of interest for the pre-arbitration period, pendente lite and future interest. It also referred to a suggestion that a certain amount be reduced from the awarded amount from Rs.1.47 crores to Rs.1 crore, which the learned counsel for the respondent therein fairly accepted. Obviously, these orders were also made under Article 142 of the Constitution of India and do not carry the matter very much further. From these judgments, to deduce, in para 39, that the judicial trend appears to favour an interpretation which would read into Section 34 a power to modify, revise or vary an award is wholly incorrect. The observation found in McDermott’s decision clearly bound the learned Single Judge and any decision to the contrary would be incorrect.
Given the fact that in several similar cases, the NHAI has allowed similarly situated persons to receive compensation at a much higher rate than awarded, and given the law laid down in NAGPUR IMPROVEMENT TRUST AND. VERSUS VITHAL RAO AND OTHERS [1972 (12) TMI 82 - SUPREME COURT], the jurisdiction under Article 136 is declined to be exercised in favour of the appellants on the facts of these cases. Also, given the fact that most of the awards in these cases were made 7-10 years ago, it would not, at this distance in time, be fair to send back these cases for a de novo start before the very arbitrator or some other arbitrator not consensually appointed, but appointed by the Central Government.
Appeal dismissed.
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2021 (7) TMI 1338
Entitlement to pay scale equivalent to their counterparts in the State of Punjab from 1.1.1986, though the revised pay scale was allowed by the Federation w.e.f. 1.1.1994 - whether 'Federation' is a State within the meaning of Article 12 of the Constitution of India or not? - Whether the upward should confine only to the categories covered in the report of Government Anomaly Committee or categories enjoying identical scales (unimproved) or not - necessity of changing the qualification/improving designations of certain categories being placed in higher scales or not? - power of Judicial Review - HELD THAT:- The Central or State Government is empowered to levy taxes to meet out the expenses of the state. It is always a conscious decision of the government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State.
The judgment in Purshottam Lal [1973 (2) TMI 135 - SUPREME COURT] is a case where reference was made to the Pay Commission to consider the pay revision of all Central Government employees paid out of the Consolidated Fund of India. The recommendation of the Pay Commission was accepted but the benefit of revised pay scale was not given to the employees of the Forest Research Institute and College, Dehradun. An argument was raised that the report of the Pay Commission did not deal with the case of the Petitioners. The said argument was negated for the reason that once the Government has accepted the recommendation of the Pay Commission, which included all Central Government employees, the benefit of revised pay scale cannot be denied to the Petitioners.
In K.T. Veerappa and Ors. v. State of Karnataka and Ors. [2006 (4) TMI 576 - SUPREME COURT], the Court upheld the principle that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government is also a relevant factor to be considered, though on facts, it was held that the employees of the University were entitled to revision of pay at par with the employees of the State.
In the present case, it is contended that the Federation is a statutory Co-operative Society which is having its Common Cadre Rules. Any amendment in the Common Cadre Rules is to be approved by the Registrar (Co-operative Societies). The State Government communicated on 1.3.1990 and 9.7.1993 that the pay scale as applicable to the Punjab Government employees is not to be adopted by the Public Sector Undertakings without taking into consideration the financial health of the other statutory Boards and Corporations. The Federation has thus taken a conscious and concerted decision to not follow the report of the Anomaly Committee of the State Government to grant revised pay scale from 1.1.1986 in view of precarious financial condition. Moreover, financial assistance had to be availed by the Federation from the State Government as well as from the National Dairy Development Board.
The submission that there will not be financial burden on the federation in view of the fact that the High Court has ordered payment of arrears for a period of 3 years and 2 months before the date of filing of writ petitions is again not tenable. The High Court has granted revised pay scales with effect from 01.01.1986 instead of revised pay scales granted to the employees of the federation with effect from 01.01.1994. Therefore, restricting it for a period of 3 years and 2 months will not be helpful in respect of the financial condition of the Federation as during the relevant time the federation was suffering from huge losses.
The order of the High Court is unjustified and in excess of the power of judicial review conferred on the High Court. Consequently, the appeals are allowed. The orders passed by the High Court are hereby set aside - Petition dismissed.
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2021 (7) TMI 1302
Seeking grant of temporary bail - seeking release on temporary bail to join his family members in performing the last rites of his mother - HELD THAT:- It may be appropriate to take cautious cognizance of the developments in the intervening period, particularly, on account of passage of time, and consider the prayer to release the appellant on temporary bail, purely on humanitarian ground. In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance.
Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, the prayer of the appellant is not unjustifiable.
There is no reasonable ground to believe that the appellant may abscond. Nonetheless, appropriate conditions are imposed upon the appellant, an undertrial prisoner, to take care of the possible apprehension of the prosecuting agency. Likewise, charge-sheet has been lodged and the identity of the majority of witnesses is concealed. This takes care of the apprehension of tampering with evidence as well.
The appellant can be released on temporary bail with effect from 13th August 2021 to 21st August 2021, subject to conditions imposed - application allowed.
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2021 (7) TMI 1296
Maintainability of application - initiation of CIRP - Default on the part of Corporate Debtor in making repayment of its dues - the Adjudicating Authority arrived at a conclusion that there was no debt as claimed by the Appellant besides there being deficiency in service provided by the Appellant warranting dismissal of application - it was held by NCLAT that Once the liability in respect of ₹ 75 lakh was admitted and the same was not discharged by the Corporate Debtor, dispute in regard to quantum of debt would be immaterial at the stage of admission of application under Section 7 unless the debt due and payable falls below the minimum threshold limit prescribed under law.
HELD THAT:- There are no cogent reason to entertain the appeal - appeal dismissed.
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2021 (7) TMI 1282
Stay on proceedings - arrest of respondent - loan fraud - voter fraud - term of office of the Board of Directors of the Cooperative Bank - huge acrimony surrounding the elections - overlapping of the allegations relating to ‘loan fraud’ and ‘voter fraud’ - declaration of result of election - newly elected Board to take charge - preservation of CCTV footage of a particular period - HELD THAT:- It is obvious that the petitioner started a dispute first against the conferment of the title of Chairman Emeritus on the 1st Respondent and then they raised issues with regard to the proposed elections, first in a writ petition filed in February, 2020 and then in a writ petition filed in November, 2020. It is only thereafter that the allegations relating to loan fraud were raised by the petitioner Association. Apparently, the petitioner had the blessings of the powers that be, which is why a direction was issued on 22.01.2021 by the Hon’ble Minister, to the Commissioner of Police to register the complaints and report to the Government.
It was patently an election dispute which was sought to be converted to a criminal case. More often than not election disputes are fought on different turfs, such as polling booths, police stations and court rooms. Sometimes, persons who raise these disputes manage to camouflage their real motive by words clothed in high moral fiber and strong legal content. But unfortunately, the petitioner could not do it successfully in this case, as the election disputes came to the court first before the petitioner could fall back upon allegations of loan fraud. Fortunately, the High Court saw through the game. This is why the High Court in its impugned order, granted the extraordinary relief of stay of further proceedings including the arrest of Respondents 1 to 3 herein. The facts are so glaring and the background setting so shocking, that the High Court correctly found it to be a fit and proper case to grant interim reliefs to Respondents 13 herein.
One of the interim prayers sought by the petitioner in the civil writ proceedings is for the conduct of a forensic audit. The said prayer is pending consideration. Allegations of the nature projected by the petitioner cannot be taken for their face value without a forensic audit and the court cannot go by the ipse dixit of the petitioner - It is completely wrong on the part of the petitioner to contend that the High Court was swayed by the pendency of civil writ proceedings. The High Court actually took note of the manner in which the color of the entire proceedings changed from February 2020 to February 2021 and it is in that background that the learned Judge took note of the pendency of civil proceedings and the overlapping of allegations.
The High Court was perfectly justified in granting interim protection to the Respondents 1 to 3 herein and in ensuring that the supremacy of the ballot is not sabotaged by the authority of the police. Hence the SLPs are dismissed.
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2021 (7) TMI 1279
Seeking grant of anticipatory bail - substance of the allegation is that the Accused did not hand over the cheques due to the farmers for their lands taken over for the project and got the cheques released in the names of other persons thereby defrauding the company and misappropriating its fund - Section 438 of the Code of Criminal Procedure 1973 - HELD THAT:- An Appellate Court or a superior court can set aside the order granting bail if the court granting bail did not consider relevant factors.
There are serious allegations against the Respondent-Accused of a fraudulent misappropriation of amounts intended to be paid by the company to the farmers affected by the work of road widening being undertaken by the complainant. The FIR sets out details of the alleged acts of fraud and misappropriation of funds, as explained earlier. Having regard to the seriousness of the allegations no case for anticipatory bail was made out. The High Court has erred both in law and in its evaluation of the facts.
The orders granting anticipatory bail Under Section 438 to the Respondent-Accused shall accordingly stand set aside - Appeal allowed.
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2021 (7) TMI 1278
Seeking grant of anticipatory bail - smuggling - recovery of 248 kgs of poppy husk, 1 Kg 500 grams of opium and 199 Kgs khas khas - contraband item - stands of the State is that the petitioner was escorting the canter in which the contraband was present and he was assigned the duty of giving signal in case of presence of police on the way - HELD THAT:- The petitioner having involved on the basis of disclosure statement of co-accused namely Balbir and Rajinder is hit by the ratio of TOFAN SINGH VERSUS STATE OF TAMIL NADU [2020 (11) TMI 55 - SUPREME COURT] wherein it has been observed that the officers who are invested with powers under Section 53 of NDPS Act are the police officers within the meaning of Section 25 of the Evidence Act. Any confessional statement made before the police officer would be hit by Section 25 of the Evidence Act. Statement under Section 67 of NDPS Act cannot be used as a confessional statement in the trial of an offence under NDPS Act.
Petition disposed off.
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2021 (7) TMI 1274
Similar matters are listed today at 02.00 PM before a Three-Judge Bench presided over by Hon’ble Sh. Justice A. M. Khanwilkar in Court - tag the instant matters along with the abovementioned matter and the paperbooks to be sent to Court immediately.
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