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Indian Laws - Case Laws
Showing 261 to 280 of 748 Records
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2023 (9) TMI 170
Constitutionality of transfer notification - Transfer of Joint Commissioner of state tax - Petitioner assailed his transfer order before the then Himachal Pradesh Administrative Tribunal, however, in the meanwhile his transfer order was cancelled and petitioner was allowed to continue as AETC Sirmaur at Nahan - huge tax evasion - HELD THAT:- Petitioner is Class-I Gazetted Officer. As a matter of fact, petitioner has remained posted at Parwanoo since December, 2020. There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer save and except for extraneous reasons. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other.
In the case in hand, the petitioner has made an attempt to show that the reasons for his transfer from Parwanoo to Shimla are not bonafide. Reliance has been placed on the order passed by the Company Court in Co. Pet. No. 13 of 2014, whereby the petitioner was authorised to conduct the sale of assets of wound-up company named M/s Indian Technomac Pvt. Ltd. It has also been propagated that the petitioner had detected the invasion of huge amount of taxes by M/s Indian Technomac Pvt Ltd. Company and it was for such reason that he was repeatedly posted at Nahan, Paonta Sahib or Parwanoo - the case of the petitioner is that the official respondents have some hidden purpose to see that the petitioner does not remain involved in the matter of M/s Indian Technomac Pvt. Ltd. Company - It is more than settled that the allegations of malafide have to be specifically pleaded and then have to be proved by cogent material.
There is no material on record to infer that there is any motive of the government in transferring the petitioner from Parwanoo to Shimla. Mere fact that the official respondents have passed orders four times to transfer petitioner within a span of last seven years is not sufficient to infer any motive of the employer in doing so, much less a motive which can be termed as oblique or ulterior. Even the transfer policy adopted by the State Government does not reserve any privilege of being not transferred before a minimum period of time for Class I, Gazetted officer(s). Rather, the flipside of the facts as have merged can be the unwillingness of the petitioner himself to be get detached from the affairs of Indian Technomac Limited.
The petitioner has been discharging the duties assigned to him by Hon’ble Company Court for the last about three years, while having his place of posting at Parwanoo. It is noticeable when the petitioner can discharge his duties as assigned to him by the Company Court while sitting at Parwanoo, why cannot he achieve from Shimla. In case of any complaint with respect to lack of facilities, he can always make his request to the authorities and the Company Court as well and in such event, it will be for Hon’ble Company Court to pass appropriate orders in the best interest of adjudication of the lis before it.
The petitioner has not been able to make out a case for himself and in result the petition is dismissed.
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2023 (9) TMI 169
Dishonour of Cheque - insufficient funds - legally recoverable debt or liability or not - complainant failed to submit details of loan outstanding against the accused - rebuttal of presumption - HELD THAT:- The High Court, in revision, exercises supervisory jurisdiction of a restricted nature. It cannot re-appreciate the evidence, as Second Appellate Court, for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. Recently, in case of MALKEET SINGH GILL VERSUS THE STATE OF CHHATTISGARH [2022 (7) TMI 1455 - SUPREME COURT], the Supreme Court observed There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
Accused Manoj Kumar has not challenged receipt of loan amount of Rs.2,60,000/- under the Vehicle Loan Scheme. Rather, in examination of accused under Section 313 of CrPC, he had specifically admitted that he has taken loan of Rs.2,60,000/- from the complainant Bank under Vehicle Loan Scheme. Therefore, learned Trial Court and Appellate Court have not committed mistake in drawing presumption of existence of legally enforceable liability in favour of the holder of cheque i.e., the complainant Bank - The accused has not submitted any evidence to show re-payment of the loan, therefore, nothing is brought on record to rebut the legal presumption under Sections 118 and 139 of Negotiable Instruments Act.
The finding of learned Trial Court and Appellant Court does not suffer any patent illegality or perversity. No interference in the concurrent findings in exercise of revisional jurisdiction is called for. - Petition dismissed.
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2023 (9) TMI 168
Dishonour of Cheque - Amicable settlement of dispute - seeking reduction of the period of sentence already undergone - HELD THAT:- Considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 2% of the cheque amount i.e. Rs.4,700/- by way of cost to be deposited with the “State Legal Services Authority” Indore.
Subject to payment of cost at the rate of 2% of the cheque amount with the “State Legal Services Authority” Indore, within a period of 15 days from today, the applicant be released from the jail. Sentence awarded to the applicant is hereby modified by reducing the sentence to the period already undergone.
Revision disposed off.
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2023 (9) TMI 132
Dishonor of Cheque - Counter allegation of deception - Supply of inferior quality of goods - suddenly stopped to supply the goods, which had again caused considerable loss - deposit of some post-dated cheques for encashment beyond the terms and conditions, without intimation - HELD THAT:- Admittedly one criminal prosecution is pending u/s 138 of NI Act against the present complainant. The present complainant initiated the instant criminal compliant with the allegation of cheating and criminal breach of trust. The complainant has adopted a procedure in the form of criminal complaint against a company which have filed a criminal prosecution u/s 138 of NI Act. The way of approaching the court of Magistrate by the complainant company appears to be the counter blast of the criminal prosecution u/s 138 of NI Act - ends of justice cannot be arrived at between the parties under the fear of the process of the court. The private companies are regularly filing mischievous complaint before the court of Magistrate in similar fashions nowadays.
The Hon’ble Supreme court in several occasions has come heavily upon such conduct of the complainant. The Hon’ble Supreme Court in the of State of Hariyana Vs. Bhajanlal [1990 (11) TMI 386 - SUPREME COURT] has specifically observed that if after taking the petition of complaint and evidences therein to be true, the court find no prima facie offence being made out against the accused persons, the High Court is free to quash the proceeding u/s 482 of Cr.P.C.
So considering the entire facts and circumstances of this case and considering the materials on record, there are merits to entertain the criminal revision - impugned Order passed by the Learned Magister is hereby set aside - revision allowed.
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2023 (9) TMI 52
Dishonour of Cheque - insufficient funds - Seeking a judgment and a decree jointly and severally against the defendants as guarantors under the deeds of guarantee dated 21st March 2018 executed by the defendants respectively in favour of the plaintiff - whether the matter could be preceded with ex-parte when during the pendency of the suit, the defendants were adjudged the insolvents?
HELD THAT:- With regard to the Court’s query as to whether the suit can proceed when the Defendant is adjudicated insolvent pending the suit, in view of the Division Bench judgement of this Court in the case of Om Prakash Nihalani [2008 (12) TMI 831 - BOMBAY HIGH COURT], there are no impediment in proceeding to pass a decree. The Division Bench has concurred with the view taken by the Madras High Court in the case of Official Assignee, High Court Madras & Ors. [1980 (2) TMI 287 - MADRAS HIGH COURT]. The Madras High Court held that under Cl.(d) of section 68(1) the official assignee would be a necessary party only if the suit was “relating to the property of the insolvent”, and the term “relating to” cannot be taken to mean “affecting”.
Thus, the Defendant has been adjudicated insolvent pending the proceeding, as it is a money decree and does not “relate to” the property of the defendant section 68(1)(d) is not attracted and the official assignee is not required to be made a necessary party.
Thus, as per Order XXXVII Rule 6 (a) of the Code of Civil Procedure, the plaintiff is entitled to a judgment forthwith - suit disposed off.
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2023 (9) TMI 51
Dishonour of Cheque - legally recoverable debt or other liability or not - mandatory requirements of Sections 138 and 142 of the N.I. Act were not complied with - rebuttal of presumptions.
Whether both the cheques in question were issued for legally recoverable debt or other liability? - HELD THAT:- In view of Section 139 of the N.I. Act, the legal presumption is raised after issuance of the cheque that it was issued for a legally recoverable debt or other liability. Since the complainant had discharged his burden in regard to issuance of the cheque on which the signature has been admitted by the accused himself and the amount is not dispute, therefore, the burden of proof shifts upon the accused to rebut this legal presumption under Section 139 of the N.I. Act to show that the cheque was not issued for any legally recoverable debt or other liability.
In view of the Section 118 of the N.I. Act until the contrary is proved the presumptions shall be made that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
The legal presumption in regard to the issuance of the cheque and also the legally recoverable debt or liability, in view of the evidence adduced on behalf of the complainant to prove the complaint case, the burden of proof which was shifted upon the accused to rebut this presumption of liability of Section 118 and 139 of N.I. Act shifted on the accused but the same has not been discharged at all. The accused has taken the defence under Section 313 Cr.P.C. but has not produced himself in evidence there being no evidence, the compliant case is found proved beyond all reasonable doubt on behalf of the complainant.
The finding recorded by the learned trial court as well as the learned appellate court holding the appellant guilty for the offence under Section 138 N.I. Act is not based on any perversity and both the judgments passed by the trial court and appellate court needs no interference and the same are affirmed. Accordingly, this criminal revision is hereby dismissed.
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2023 (8) TMI 1633
Condonation of delay in filing a review application - Section 5 of the Limitation Act, 1963, in view of Section 21 & 22 of the Administrative Tribunal Act, 1985, and Rule 17(1) of the Central Administrative Tribunal (Procedure) Rules, 1987 - HELD THAT:- Since, the present issue is relating to condonation of delay in filing the review before the Tribunal, this Court finds that section 22(3)(f) of the Administrative Tribunal Act, 1985 relates to the power of a Central Administrative Tribunal to review its own decision. Therefore, as far as the power of the Administrative Tribunal to review its own decision is concerned, sufficient power has been vested as per the statute itself. Apparently, the extent of power to be exercised by the Tribunal can be well understood from the provision that the said power of review is to be found under the larger umbrella of section 22 (3) of the Act, 1985.
The power of review vested with an Administrative Tribunal is equated to a Civil Court and, thus, while considering and disposing of any review application, the Administrative Tribunal is to follow the Code of Civil Procedure. Thus, by necessary implications the provisions of review as found under the Civil procedure Code i.e Section 114 and Order XLVII Rule 1 of the Civil Procedure Code came to be incorporated along with the power of review of an Administrative Tribunal - the power of the Tribunal to review its judgment has been well explained by the Hon’ble Supreme Court in the case of Ajit Kumar Rath v. State of Orissa [1999 (11) TMI 861 - SUPREME COURT] and Gopalbandhu Biswal Vs Krishna Chandra Mohanty [1998 (4) TMI 550 - SUPREME COURT], wherein the Hon’ble Supreme Court had held review power of a Tribunal to be similar as has been granted to a Civil Court under Section 114 or under Order XLVII Rule 1 of the Civil Procedure Code. In any case, the power of review is not absolute and is hedged in by the restrictions indicated in Order XLVII Rule 1 of the Civil Procedure Code and the same can be exercised on the application of a person on restricted grounds of discovery of new and important matter; or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made.
Apparently, the Apex Court in the Commissioner of Sales Tax, U.P. Vs. Madan Lal Dan & Sons. Bareilly [1976 (9) TMI 135 - SUPREME COURT] has held that for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply in so far as, and to the extent to which they are not expressly excluded by such special or local law, and noted that there was nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act.
The provisions of Section 5 of the Limitation Act would be applicable to a review Application field before the Administrative Tribunal as the provisions of limitation are not specifically barred by the Administrative Tribunal Act or the Rules framed therein. However, the Tribunal should exercise great caution while applying the said provision of the limitation Act, so as to balance between a right of a party to review the order on limited legally permissible grounds available to him and public policy which provides for finality of a lis between the parties - Hon'ble Supreme Court in Union of India & others vs. Chitra Lekha Chakraborty [2008 (10) TMI 743 - SUPREME COURT], wherein the Apex Court held that since there is a specific provision in Rule 17 of the Administrative Tribunals Rules for filing of Review applications before the Central Administrative Tribunal, Section 5 of Limitation Act was not applicable to a petition under Rule 17.
Conclusion - This Court holds that an application for condonation of delay in Review Application filed before the Central Administrative Tribunal (Procedure) Rules, 1987 is maintainable and accordingly, it is held that the Tribunal can condone the delay under Section 5 of the Limitation Act, if it is satisfied that sufficient cause for not preferring an application within the time has been supplemented.
The impugned order is quashed - petition allowed.
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2023 (8) TMI 1632
Entitlement to sale certificates filed in Book No. 1 u/s 89(4) of the Registration Act, 1908 - purchase of properties through public auctions conducted under the SARFAESI Act - HELD THAT:- Section 78 of the Act empowering the State Government to prepare a table of fees on various items like for the registration of documents, for searching the Registers etc. Accordingly in respect of registration of documents in Books 1 and 4, i.e., under Section 89(4) of the Act, the revised table of fees prepared under Section 78 of the Act and approved by the State Government was published for general information in accordance with the provisions of Section 79 of the Act, where there are several schedules given, now after schedule 4, a new schedule, i.e., 4A has been inserted by virtue of the said amendment.
Under this new schedule 4A, filing a sale certificate under sub-section (2) or sub-section (4) of Section 89 of the Act requires a fee, i.e. Rs. 11/-for every rupees hundred or part thereof on the market value of the property. That means, 11% of fee to be paid by every sale certificate holder who seeks for filing of the same either under Section 89(2) or under Section 89(4).
In the G.O. No. 28, dated 28.03.2023 as quoted herein above, the Government has stated that the Inspector General of Registration has stated that, the Hon'ble Supreme Court of India has ordered to file the sale certificate issued by the authorised officer of the bank under Section 89 of the Registration Act, 1908 without insisting stamp duty and registration fee. Therefore the Inspector General of Registration has proposed to levy filing fee for the sale certificate which is sent for filing whether issued by the Civil Court or Revenue Officer or Authorised Officer of the Bank, under Section 78 of the Registration Act, 1908 - in the notification annexed to the G.O, it has been made clear that, the amendment hereby made shall come into force on 23rd March 2023. Therefore only from the date of issuance of the G.O. No. 28, this amendment would come into effect i.e., prospectively.
Conclusion - The sale certificates issued by authorised officers under the SARFAESI Act are not compulsorily registrable and should be filed in Book No. 1 without the imposition of additional stamp duties or registration charges.
Petition allowed.
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2023 (8) TMI 1623
Issuance of summons - some of the accused were residing at a place beyond the area covered by the jurisdiction of the learned Magistrate - non-compliance with the mandatory requirement of Section 202(1) of CRPC - HELD THAT:- There cannot be any doubt that in view of the use of word "shall" in sub-section 1 of Section 202 of the CRPC and the object of amendment made by the Act No. 25 of 2005, the provision will have to be held as mandatory in a case where the accused is residing at a place outside the jurisdiction of the learned Magistrate. In fact, in paragraph No.12 of the aforesaid decision relied upon by the learned counsel appearing for the petitioner, this Court held that in a case where one of the accused is a resident of a place outside the jurisdiction of the learned Magistrate, following the procedure under subsection 1 of Section 202 of the CRPC is mandatory.
In the case of Vijay Dhanuka [2014 (3) TMI 1103 - SUPREME COURT], this Court found that before issuing summons, the learned Magistrate had examined the complainant and two other witnesses on oath and therefore, on facts, this Court found that a substantial compliance with sub-section 1 of Section 202 of the CRPC was made.
Conclusion - In this case, even substantial compliance has not been made by the learned Magistrate. It is true that evidence was recorded before charge and at that stage, an objection was raised by the respondents. Considering the mandatory nature of sub-section 1 of Section 202 of the CRPC, in the facts of this case, non-compliance thereof will result into failure of justice. Hence, there are no error in the impugned order of remand passed by the High Court.
SLP dismissed.
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2023 (8) TMI 1621
Education/recruitment scam - Verification of candidates appointed without requisite qualifications in the TET 2014 examination - HELD THAT:- It has already been brought to the knowledge of the Court that the persons involved in the crime relating to the recruitment scam and the municipal scam are more or less the same, the modus operendi and proceeds of crime in both the scam are intermingling with each other.
As the investigation in respect of both the scams will continue simultaneously, the investigation shall be a Court monitored one and the officers are required to file the report of investigation before this Court as and when directed.
The report filed by the Assistant Director, Enforcement Directorate signed on August 29, 2023 is taken on record. It appears therefrom that the investigating agency has prepared a list of the selected suspected teachers whose names/roll numbers were found in the seized documents/digital records obtained from various accused persons. The list of the said candidates shall immediately be forwarded by the Enforcement Directorate to the West Bengal Board of Primary Education for verification. The Board shall verify the credentials of the said candidates and if it appears that any of the candidates in the said list was appointed dehors the provisions of law, then prompt necessary steps shall be taken against him/her.
The Court, by order dated July 14, 2023, directed the investigating officers to place on record the details of the beneficiaries of the education scam. In the report filed today by CBI, the list of the teachers who were allegedly appointed dehors the rules, has been annexed. The details of the other beneficiaries, who received the money in lieu of providing service to the unemployed youth, shall be placed before this Court on the adjourned date.
The matter stands adjourned till September 14, 2023 for taking note of the updates in the instant case.
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2023 (8) TMI 1607
Seeking a direction to respondent No. 5, i.e., the Tender Evaluation Committee, through its Chairman, Additional District Magistrate, Bageshwar, to include the petitioner in the financial bid opening process, and to treat his e-challan fee, as submitted within the stipulated time - case of the petitioner is that the petitioner could not deposit the said amount through e-treasury challan, since the portal of the respondents was under maintenance, and non-functional from 15.07.2023, 05: 00 P.M. till 18.07.2023, 10: 00 A.M. - HELD THAT:- It is found that the action of the respondents to be most unreasonable and unfair since, admittedly, their portal was not working from 15.07.2023 onwards and till 18.07.2023. It would have been only fair for the respondents to extend the time for submitting the e-tenders with the e-challans till after the portal became operational. A bidder like the petitioner, who attempted to deposit the money through the e-challan, but could not do so on account of the portal not working, could not be put to disadvantage, particularly when the petitioner had made his representation on 17.07.2023 itself. Clearly, the petitioner has been wronged in the matter. However, considering the fact that the contract already stands awarded, and the contractor is performing the contract, at this stage, it is not inclined to interfere with the award of the contract.
Conclusion - The respondents should have extended the submission deadline. However, given the contract's current execution, the court chose not to interfere with the award but left the petitioner the option to claim damages.
Petition disposed off.
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2023 (8) TMI 1602
Whether the Election Petition filed by the Petitioner before the Sub Divisional Officer (R) seeking relief of recounting of votes alone, without seeking any relief Under Rule 6 of the Rules of 1995 was maintainable?
HELD THAT:- It is well settled principle of law that where a right or a liability is created by a statue, which gives a special remedy for enforcing it, the remedy provided by the statue must be availed of. It is also well settled salutary principle that if a Statue provides for doing a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.
In Cherukuri Mani w/o. Narendra Chowdari v. Chief Secretary, Government of Andhra Pradesh and Ors. [2014 (5) TMI 1227 - SUPREME COURT], it is observed that "where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure."
So far as the facts of the present case are concerned, Section 122 of the said Act provides that an election under the said Act could be called in question only by a petition presented in the prescribed manner. The manner prescribed is in the Rules of 1995. Rule 5 pertains to the "contents of the election petition" and Rule 6 thereof pertains to "the relief that may be claimed by the Petitioner". In the said Rule 6, it has been provided that the Petitioner may claim a declaration that the election of all or any of the returned candidates is void; and in addition, thereto a further declaration that he himself or any other candidate has been duly elected.
Conclusion - The Petitioner having failed to make any application in writing for re-counting of votes as required Under Section 80 of the Nirvachan Niyam, 1995, and having failed to seek relief of declarations as required Under Rule 6 of the Rules of 1995, the Election Petition filed by the Petitioner before the Sub Divisional Officer (R) seeking relief of re-counting of votes alone was not maintainable.
Appeal dismissed.
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2023 (8) TMI 1596
Volation of principles of natural justice - petitioner was never heard before declaring the account of the petitioner as a ‘fraud’ - HELD THAT:- Issue notice.
On the petitioner taking steps, notice be issued to respondent no. 3 by all permissible modes, returnable on 18th October, 2023.
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2023 (8) TMI 1594
Cost Accountants can be treated equivalent to Chartered Accountants for the appointment of Director (Finance) in CPSE or not - violation of Articles 14 and 16 of the Constitution - issuance of writ of mandamus to set aside the preference clause without challenging the decision of the expert committee or the minutes of the meeting - HELD THAT:- There exists distinction between the role and responsibility of Chartered Accountants and Cost Accountants as the said provision only provides for Chartered Accountants as explanation of the term ‘accountants’ which is not replaceable with the Cost Accountants. Therefore, it is established that the Chartered Accountants are treated differently than Cost Accountants in some statues and there can be no embargo upon the authorities to treat them differently.
Whether treating two qualifications differently would amount to discrimination, thereby violating the fundamental right of the petitioner as provided under Article 14 of the Constitution of India? - HELD THAT:- On perusal of Article 14 of the Constitution of India, it is clear that the denial of equality by the state is prohibited and the breach of the same amounts to violation of the fundamental rights of the citizens. At the same time, the Article 16 also permits reasonable classification based on intelligible differentia. In order to analyse whether the said condition has been met in the instant case, it is imperative to look into the judicial dicta dealing with the similar issue and whether the settled position of law can be made applicable in the instant case.
In the case of T.R. Kothandaraman v. T.N. Water Supply & Drainage Board [1994 (9) TMI 357 - SUPREME COURT], the Hon’ble Supreme Court examined the classification created for separate qualification and held that the nature of the job does permit the Government to prefer better qualified persons if the job entails the work to be handled specifically by a person having specific qualification.
In the case of Chhattisgarh Rural Agriculture Extension Officers Assn. v. State of M.P., [2004 (4) TMI 668 - SUPREME COURT (LB)], the Hon’ble Supreme Court allowed the state to differentiate for the appointment on the basis of different qualifications and held that the state cannot be said to have acted illegally in granting a higher pay scale for the higher qualification.
On perusal of the relevant paragraphs of the aforementioned judgments, it is clear that the state can create classifications based on the qualifications. Therefore, it is well within the power of the state to create separate classification based on the reasonable differentia - In the instant case, it is already established that the Cost Accountants and the Chartered Accountants are not similarly placed as the same are defined and governed under two separate statutes of the Parliament. On perusal of the Section 288 of the Income Tax Act, 1961, it is also made out that some legislations do specifically provide for ‘Chartered Accountants’ instead of the Cost Accountants as an explanation to the term ‘Accountant’. Hence, the difference in both the profiles has already been established.
Thus, it is crystal clear from the above discussion that the Cost Accountants and the Chartered Accountants cannot be similarly placed for appointment to the post of Director (finance) in the respondent Organization and treating them differently does not amount to discrimination and violation of fundamental rights as enshrined in the Constitution of India - on establishment that no prejudice was caused to the petitioner by preferring Chartered Accountants over the Cost Accountants, and the classification as created for the post of Director being well within the bounds of the respondent Body, this Court is inclined to answer the issue in favour of the respondents and against the petitioners.
Whether the court can issue a writ of mandamus to set aside the preference clause without challenging the decision of the expert committee or the minutes of the meeting? - HELD THAT:- In the instant case, even though it is contended that this Court while exercising its power under Article 226 of the Indian Constitution can set aside the preference clause from the said Advertisement/JD, it is imperative to satisfy the question of whether the writ of mandamus can be issued to direct the respondents to do away with the preference clause inserted in the Advertisement/JD when the decision of the expert committee stemming from the meeting dated 19th August, 2021, is not under the challenge before this Court.
It is imperative to refer to the settled position of law with regards to the said issue. In Bachhaj Nahar v. Nilima Mandal [2008 (9) TMI 967 - SUPREME COURT], the Hon’ble Supreme Court had discussed the purpose of pleadings at length and held that allowing a particular relief without there being a prayer for the same would lead to miscarriage of justice where it was held that 'The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.'
In Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi [2009 (11) TMI 942 - SUPREME COURT], the Hon’ble Supreme Court discussed the scope of Writ Court and held that even though the courts have wide discretion in deciding the writs, they cannot grant a relief not prayed by the petitioner - in light of the settled principles regarding both issuance of mandamus and principles governing the grant of reliefs, this Court is not inclined to delve into an issue which is not prayed for in the petition. Therefore, this sub-issue is also answered in favour of the respondents.
Where the question of whether this Court can set aside a decision taken by the high level expert committee needs to be decided? - HELD THAT:- In the instant case, it is clear that the petitioner has not questioned the constitution of the respondent Body rather, has only challenged the preference clause inserted in the qualification section of the Advertisement/JD notified by the respondent Body for the vacant post of Director (Finance) in the respondent Organization - Hence, it is a settled principle of law that the decisions taken by such experts need not be questioned until and unless there is clear bias on part of the experts and mala fide is established by adducing sufficient evidence or the constitution of the committee is under challenge which is not the case in the instant petition.
In light of the foregoing discussion and the settled principle of law, this Court does not find any compelling reasons to get into the decision made by the expert committee as it is assumed that the experts looked into all the aspects relating to the selection process and then decided to prefer the Chartered Accountants over Cost Accountants and this sub issue is also answered in favour of the respondents.
The instant petition is devoid of merits and is dismissed.
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2023 (8) TMI 1586
Dowry harassment - Jurisdiction - power of High Court to quash the FIR and chargesheet under Section 482 of the Code of Criminal Procedure - offense under Section 498A of the Indian Penal Code and the Dowry Prohibition Act - misuse of the legal process by the complainant in implicating the appellants - HELD THAT:- The most significant aspect to be taken note of presently is that Bhawna admittedly parted ways with her matrimonial home and her in-laws in February, 2009, be it voluntarily or otherwise, but she did not choose to make a complaint against them in relation to dowry harassment till the year 2013. Surprisingly, FIR No. 56 dated 09.02.2013 records that the occurrence of the offence was from 02.07.2007 to 05.02.2013, but no allegations were made by Bhawna against the Appellants after she left her matrimonial home in February, 2009. Significantly, Bhawna got married to Nimish on 02.07.2007 at Indore and went to Mumbai with him on 08.07.2007. Her interaction with her in-laws thereafter seems to have been only during festivals and is stated to be about 3 or 4 times - No specific instance was cited by her in that regard or as to how he subjected her to such harassment from Delhi. Similarly, Abhishek became a judicial officer 6 or 7 months after her marriage and seems to have had no occasion to be with Bhawna and Nimish at Mumbai. His exposure to her was only when she came to visit her in-laws during festivals. Surprisingly, Bhawna alleges that at the time of his own marriage, Abhishek demanded that Bhawna and her parents should provide him with a car and Rs. 2 lakhs in cash.
The fact that Bhawna confessed to making a vicious complaint against Abhishek to the High Court clearly shows that her motives were not clean insofar as her brother-in-law, Abhishek, is concerned, and she clearly wanted to wreak vengeance against her in-laws. The allegation levelled by Bhawna against her mother-in-law, Kusum Lata, with regard to how she taunted her when she wore a maxi is wholly insufficient to constitute cruelty in terms of Section 498A Indian Penal Code.
Bhawna herself claimed that Nimish came to her brother's wedding in 2012, but she has no details to offer with regard to any harassment for dowry being meted out to her by her mother-in-law and her brothers-in-law after 2009 - even for that period also, her allegations are mostly general and omnibus in nature, without any specific details as to how and when her brothers-in-law and mother-in-law, who lived in different cities altogether, subjected her to harassment for dowry.
Most damaging to Bhawna's case is the fact that she did nothing whatsoever after leaving her matrimonial home in February, 2009, and filed a complaint in the year 2013 alleging dowry harassment, just before her husband instituted divorce proceedings.
Bhawna's allegations against the Appellants, such as they are, are wholly insufficient and, prima facie, do not make out a case against them. Further, they are so farfetched and improbable that no prudent person can conclude that there are sufficient grounds to proceed against them. In effect, the case on hand falls squarely in categories (1) and (5) set out in Bhajan Lal. Permitting the criminal process to go on against the Appellants in such a situation would, therefore, result in clear and patent injustice. This was a fit case for the High Court to exercise its inherent power Under Section 482 Code of Criminal Procedure to quash the FIR and the consequential proceedings.
Appeal allowed.
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2023 (8) TMI 1552
Dishonour of Cheque - prayer to quash the summoning order - no finding recorded regarding filing of complaint against the applicant in connection with bouncing of the cheques upon the applicant although the same was said to be sent on 30.09.2019 - HELD THAT:- This Court finds that the law has been well settled by the judgement Yogendra Pratap Singh vs. Savitri Pandey and Another [2014 (9) TMI 1129 - SUPREME COURT] that the cause of action for filing a complaint case under Section 138 of the N.I Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused.
This Court finds that in the light of the judgment passed by the Hon'ble Supreme Court in Yogendra Pratap Singh - versus- Savitri Pandey and another, the complaint filed by the complaint is pre-mature as the cause of action for filing the complaint case under Section 138 of the Negotiable Instruments Act, 1881 had not crystalised on 23.10.2019 and accordingly, the complaint itself was pre- mature and hence not maintainable.
Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the applicant could not have been summoned under the said Section. The question of any presumption regarding existing debt under Section 138 of the Negotiable Instruments Act, 1881 also could not arise as the complaint itself was not maintainable.
Accordingly, the present application is hereby allowed.
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2023 (8) TMI 1551
Assailing the Arbitral Award - section 34 of the A&C Act - Validity of claims for escalation cost and prolongation of contract - HELD THAT:- The petitioner’s contention that Contractor never claimed that the endorsement was given under duress, is fallacious as the Contractor in its rejoinder before the AT, clearly outlined the circumstances under which the said endorsement was given. This Court also finds strength in the submission of the learned counsel for Contractor that, only when the petitioner tried to take the benefit of the endorsement in its statement of defence, did the Contractor give explanation in its rejoinder. Whether such an endorsement can be enforced against the claimant to deny its legitimate claims, especially when the impugned Award holds the petitioner guilty of delay, would not require much deliberation.
Issuance of NOC or other similar ‘no claim’ certificate by a party, in favour of another contracting party, by itself does not disentitle the party having a claim from explaining the circumstances in which NOC is issued. Reverse of the same is equally true. There is no absolute rule which outrightly negates the evidentiary value of NOC’s or ‘no claim’ certificate.
In the present case, the AT has opined that the NOC issued by the Contractor was involuntary and hence, cannot be enforced against the Contractor to deny a claim, to which it was otherwise entitled. AT has given a finding of fact in this regard, after examining the circumstances under which NOC was issued by the Contractor. There is nothing patently illegal about such finding. Thus, there is no reason for this court to interfere with this finding.
Petitioner’s second contention that the AT erred in awarding claim on account of prolongation of Contract, as there was no clause in the Contract providing for the same, is also meritless. It is pertinent to note that the Contractor had claimed damages towards the escalation cost, on account of breach of Contract by the petitioner. Admittedly, the Project was completed to the satisfaction of the petitioner, and the delay in execution was attributable to the petitioner. Clause 10C of the Contract provided for increase in cost of materials and labour during the period of extension. The claim was sub-divided into two sub heads i.e., claim on account of increase in wages for labour on prevailing wages as per Clause 10C and claim on account of increase in prices of material. The AT observed that the petitioner had granted extension of time considering the hindrances, and without levy of any compensation, which showed that the delay was attributed to the petitioner.
The AT found the same violative of Section 73 of the Contract Act, which entitles a party to claim compensation for breach of the contract committed by the other contracting party. Even if contract does not provide for price escalation, it would not preclude a party to claim escalation in price, as a measure of damages suffered by it, if the other contracting party is guilty of causing delays in completion of contractual works.
The AT, while considering the contentions raised by the petitioner, came to the conclusion that the endorsement given by Contractor, while seeking extension of time, would not come in its way in seeking escalation cost, especially when the delay was attributable to the petitioner. In the considered opinion of this Court, the view taken by the AT was both possible and plausible, and needs no interference in light of the narrow scope of Section 34 of the A&C Act.
The objections fail and the petition along with pending application is dismissed with no order to costs.
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2023 (8) TMI 1550
Challenge to order of the Head of the Institution in refusing to consider her application for transfer - rejection of transfer application on the ground of "out of 10% - HELD THAT:- The service conditions gives right to claim transfer on fulfillment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. There are no material to reject the said application of the petitioner by the Head of Institution on the ground of “out of 10%” and no sufficient material is produced to justify the said stand. The order of rejection has to be considered on the basis of the reasons mentioned and not on any other extraneous consideration. The argument made that pupil teacher ratio was a relevant factor is not borne out from the impugned order of the Head of the Institution. There cannot be any doubt that in an appropriate situation interest of the student could be the over-riding consideration.
In a given situation it is possible that although a teacher is eligible for transfer an immediate replacement may not be possible and the recruitment process for the said post would take such time the transfer may be given effect to from a future date. However, once a teacher fulfills the eligibility criteria, the authority must take steps to fill up the resultant vacancy as per the norms existing at the relevant point of time by way of local arrangement or by recruiting a permanent teacher for the said post within a reasonable time.
The Commissioner of School Education is directed to consider the application for transfer of the petitioner on verification of the record and production of relevant documents by the school authorities.
The order under challenge is thus, set aside - appeal allowed.
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2023 (8) TMI 1549
Gross abuse of the process of law - making false statements 'On Oath' before this Court - prceedings under Section 340 of Cr.P.C. - Whether or not the present case is barred by the provisions of the Benami Act? - HELD THAT:- The present application, though having been filed under Section 340 of the Cr.P.C., is being treated as an application under Order VII Rule 11 CPC. All the parties have made their submissions with reference to provisions of Order VII Rule 11 CPC dealing with rejection of plaint.
While considering submissions under Order VII Rule 11 CPC, the court only has to see the contents of the plaint in order to gauge whether or not the plaint discloses any cause of action and is not otherwise barred by any law. Defence as may be raised in the written statement or in the arguments for rejection of plaint, are not relevant for adjudication under Order VII Rule 11 CPC. Thus, in the case of Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others [2006 (1) TMI 600 - SUPREME COURT], Supreme Court has held 'A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint.'
Whether or not the present case is barred by the provisions of the Benami Act; or whether or not the plaintiff will or will not have benefit of exceptions as provided in the Benami Act, is an aspect which would have to be decided on the basis of the evidence on record. These are matters of fact which require trial. Disputed questions have been raised on behalf of the parties, which cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. "Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the pliant, without any doubt or dispute shows that the suit is barred by any law in force." In the facts and circumstances of the present case, this question cannot be decided at the stage of the application under Order VII Rule 11 CPC and suit cannot be rejected at the threshold by applying principles of Order VII Rule 11 CPC.
Thus, it is apparent that the question with respect to benami transaction would have to be determined by this Court on the basis of various tests/circumstances as laid down by Supreme Court in the aforesaid judgment. These facts and circumstances on the basis of which the question of benami transaction is to be determined, would be established only on the basis of evidence to be led by the parties. Therefore, it is clear that suit cannot be dismissed at this stage on the basis of the contention raised on behalf of defendant no.1 that suit is barred by the Benami Act.
Perusal of the plaint clearly discloses cause of action in favour of plaintiff. Reading of the plaint does not disclose prima facie that the plaint is barred by any law. Therefore, the plaint cannot be rejected under Order VII Rule 11 CPC in a summary manner without trial. The various issues as raised on behalf of the plaintiff and defendant No. 1 can only be decided after trial and considering the evidence on record.
The present application is found without any merits and the same is accordingly dismissed.
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2023 (8) TMI 1548
Seeking grant of regular bail - Smggling of contraband - Compliance with procedural requirements under the NDPS Act, particularly regarding the drawing of samples and preparation of seizure memo - HELD THAT:- It is noteworthy that, firstly, Section 52 of the NDPS Act is directory in nature, secondly, non-compliance of the said provision, in itself, cannot render the actions of the Investigating Officers null and void and lastly, whether non-compliance of rules, in cases involving commercial quantity, could be a ground for grant of bail, will have to be examined considering the nature of violation of such standing procedure and consequences thereof.
In the opinion of this Court, the applicant also cannot claim parity with the accused persons in SURAJ VERSUS STATE GOVT. OF NCT OF DELHI [2023 (8) TMI 1546 - DELHI HIGH COURT] and PRIYARANJAN SHARMA VERSUS STATE OF NCT DELHI [2023 (8) TMI 1547 - DELHI HIGH COURT] as the situation(s) involved therein were far from what are involved herein. In any event, reliance placed by the learned counsel for the applicant on the aforesaid cases is misplaced, as the period undergone in the present case is far less than what was involved therein and bail granted to the accused therein was under the facts of those cases. Even otherwise, it is trite that parity is not the sole ground for granting bail to an accused like the applicant herein, more so, whence there is a huge difference between the quantum of contraband recovered/ involved in the present case - the Court must not forget that the burden always remains on the prosecution to prove the guilt of the accused beyond reasonable doubt and it cannot be ignored that the applicant has yet not come up with any plausible explanation, during trial, as to the reason for his possession of such large quantities of contraband.
Admittedly, the charges are yet to be framed and no witnesses have been examined so far before the learned Trial Court. Releasing the applicant on bail at this stage may amount to the applicant influencing the witnesses or tampering with evidence.
Seeing the gravity of the offence involved and the factual matrix of the case that colossally large quantities of alleged NDPS medicines were recovered from the possession of the applicant and further most relevantly as the applicant is yet to come up with any explanation, why he was in possession of such large quantities of contraband, in the opinion of this Court, grant of bail to the applicant at this stage will not be appropriate and is not called for.
The present application seeking grant of regular bail registered under Section (s) 8/21/22/28/29/30 of the NDPS Act at Central Bureau of Narcotics, Delhi, is dismissed.
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