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1951 (7) TMI 22 - HIGH COURT OF CALCUTTA
... ... ... ... ..... rocess server is still more profound. To attempt to serve a partner calling him an 'authorised employee' and at his residence, is by itself wrong, but even so, that service was by affixation and under circumstances under which no service by affixation could be effected. 40. As regards defendant 3, he has served on the third attempt because he could not be found and there was no 'authorised person living in the same mess.' This also shows the profound ignorance of the process server regarding the elementary principles governing service by affixation. 41. I, therefore, hold that there was no proper service in this case and I direct that the suit should go out of the undefended list and that a fresh Writ of Summons should issue for service upon the defendants (other than defendant 4) and that service be effected in accordance with law. Let the Writ issue upon counsel's endorsement, countersigned by my officer. 42. The question of costs of the day is reserved.
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1951 (7) TMI 21 - BOMBAY HIGH COURT
... ... ... ... ..... rom the order that we are making with regard to the costs of the appeal. Therefore, the costs of the hearing of the petition will be that the petitioner must pay to the State three fourths of the costs of the hearing of the petition, Costs of the reference will be costs in the petition. Costs to be taxed on the Long Cause scale. 31. The respondent has cross-objected against the failure on the part of the learned Judge below to give a direction to the State to remove the lock and seal placed upon certain portions of the premises which wore sought to be requisitioned by the order which was held to be a bad order. In our opinion, the petitioner is entitled to possession of the premises which he was asked to hand over under the order of requisition. Therefore, we will direct that the State should hand over possession of the premises within seven days from today. The rest of the cross objections dismissed. No order as to costs. 32. Appeal dismissed; Gross-objection partly allowed.
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1951 (7) TMI 20 - ORISSA HIGH COURT
... ... ... ... ..... en found framed as one for specific performance of contract. This view is totally misconceived. The only part of the contract that was necessary to be enforced was payment of the consideration by the lessee. They had already got the benefit from the lessor's performance of his part of the contract. They could not keep the benefit to themselves and repudiate the contract. Besides, this question had been raised before the first appellate Court and so it could be raised in Second Appeal provided, as is the case here, all the necessary findings of facts are there. In the circumstances, we direct that the plaintiff's suit be decreed for the claim. 8. As the plaintiff's approach to the subject-matter of the suit was wrong and he was vacillating from one point to another, he shall be deprived of the costs which should have otherwise followed his success. 9. In the result, the suit is decreed but each party should bear his own costs throughout. Narasimham, J. 10. I agree.
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1951 (7) TMI 19 - RAJASTHAN HIGH COURT
... ... ... ... ..... It was argued that the plaintiff should be given an opportunity in this case to amend his plaint so as to bring forth the original cause of action. 9. It is possible that in the view of law taken by the Jodhpur Chief Court the plaintiff and his lawyer may have been misled into drafting the plaint in the way they have done. The plaintiff is, therefore, allowed to amend his plaint by incorporating the original cause of action. He will, however, pay the costs incurred by the respondent in this Court and the lower appellate Court. 10. The appeal is, therefore, accepted, the judgment and decree of the lower Court are set aside, and the case is sent back to the trial Court. The plaintiff will be allowed to amend his plaint within one month of the record reaching the trial Court, and the trial Court will proceed further according to law. The appellant will pay costs of the first appellate Court and of this Court. The costs of the trial Court will abide the final result of the suit.
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1951 (7) TMI 18 - HIGH COURT OF MADRAS
... ... ... ... ..... ision has reference to the additional constructions which may come into existence after the lease in the space outside the 35 feet ground granted under the lease and not to the lessee's buildings adverted to in Clause (4) of the later set of covenants in the document between the lessor and the lessee. It may still be a question at the same time, if Mr. Muthu Krishna Ayer's construction is to be accepted whether the effect of the failure on the part of the lessee to remove the building in accordance with the liberty given to him by Clause (4) of the later set of covenants will be to make of the lessee's building property of the lessor and that too without any liability to pay any compensation. As already stated, I do not feel called upon to express any final opinion upon this aspect of the matter in view of the conclusion that we have reached on the main point argued in concurrence with the court below. ( 38. ) I agree that the appeal must be dismissed with costs.
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1951 (7) TMI 17 - PEPSU HIGH COURT
... ... ... ... ..... 51 Mad. 249. the conduct of the authorities concerned is such as to make it clear that they have not been discharging their duties and are not likely to do so without the guidance of the Court that the Court will be justified in issuing mandamus. In this case, there is nothing to show that the Sales Tax Officer or the Commissioner did not discharge their duties or that they were not likely to discharge their duties without the guidance of the Court and that accordingly this being an exceptional case appro- priate writs should be issued even though the petitioners have not availed of the remedies provided by the Ordinance. In fact, it appears to me that either because of the wrong advice given to them or because of certain other reasons which are not clear from the record, the peti- tioners rushed to this Court without any cause whatsoever. In the result I would dismiss the petitions with costs. Counsel s fee Rs. 20 in each case. GURNAM SINGH, J.-I agree. Petitions dismissed.
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1951 (7) TMI 16 - PUNJAB HIGH COURT
... ... ... ... ..... Indian food preparations ordinarily sold by Tandur- walas, Lohwalas and Dhabawalas. We do not think, however, we should go into the merits of the applicants contentions, for by Sec- tions 20, 21 and 22 of the Act provision not only for appeal and for revision but also for statement of a case to the High Court in the manner of Section 66 of the Income-tax Act is made. We think it is for the applicants to take their proper remedies under the Act rather than here seek to invoke an extraordinary jurisdiction under Article 226 of the Constitution. Without therefore expressing any opinion on the merits of the contentions raised we think these applications should be dismissed. No order as to costs. Applications dismissed.
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1951 (7) TMI 15 - BOMBAY HIGH COURT
... ... ... ... ..... onable doubt, to put such a construction upon a taxing statute as is most bene- ficial to the subject. In view of these decisions we think the benefit of the ambiguity in the wording of the item ought to go to the appli- cants. This means that cloth of sample No. 4 ought also to be treated as subject to the general tax of half anna in the rupee and not to the special tax. 9.We find from the record that the figure of tax so far as the cloth of sample No. 4 is concerned has been fixed at Rs. 337-7-0 by the Sales Tax Officer under the orders of the Collector of Sales Tax. This figure will have to be reduced to half, i.e., Rs. 166-11-6. 10.We pass the following order. ORDER. The order of the Collector of Sales Tax is modified and it is direct- ed that the tax already assessed be reduced by Rs. 166-11-6. The applicants will have their costs throughout from the opponent. Ordered accordingly. (1) 1935 3 I.T.R. 147 37 Bom. L.R. 112 at p. 117. (2) 1948 16 I.T.R. 192 50 Bom. L.R. 349.
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1951 (7) TMI 14 - BOMBAY HIGH COURT
... ... ... ... ..... observe here that there is a defect in the drafting of the sec- tion and that it ought to be removed as soon as possible by mentioning the Collector of Sales Tax as an authority entitled to condone delay (in suitable cases) in filing revision applications. He mostly deals with revision applications. It will certainly be strange that he should have no such power. 4.Section 22A of the Act would have helped the applicant had Section 12 of the Indian Limitation Act covered cases of revision. We could then have deducted in his favour the time taken in obtaining the copy of the Assistant Commissioner s decision but unfortunately for the applicant Section 12 does not cover applications for revision. 5.For the reasons given above we think we have to uphold the decision of the Collector of Sales Tax, that the application to him was barred by limitation. This revision application fails. ORDER. The application is rejected. There will be no order as regards costs. Application rejected.
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1951 (7) TMI 13 - ALLAHABAD HIGH COURT
... ... ... ... ..... facts as stated in the petition, no such case as would justify us in asking the Revising Authority to refer it to this Court for decision. The next point urged by learned counsel for the applicant is that in calculating the sales tax the licence fee should have been deducted from the turnover. Rule 44 framed under the Act lays down that the tax under Section 3 shall be computed on the net turnover. In deter- mining that net turnover the amounts specified shall be deducted if they are found included in the gross turnover. Looking to the amounts which are to be deducted, we find that the licence fee is not one of them. It cannot come under any one of the sub-rules (a) to (g) of Rule 44. We consequently find that there is no force in this argument either. For the reasons given above, we hold that there is no force in this application. It is accordingly dismissed with costs. Learned standing counsel shall be entitled to a fee of Rs. 200 from the applicant. Application dismissed.
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1951 (7) TMI 12 - ALLAHABAD HIGH COURT
... ... ... ... ..... proviso to Section 7 as also under Rule 39 of Chapter VIII. This being the state of affairs there is no force in this case. We, therefore, reject this application with costs. The learned Standing Counsel shall be entitled to a fee of Rs. 200. We may say that a copy of the order of the learned Judge (Revisions), Sales Tax, refusing to submit the case to this Court was not filed along with the application presented to this Court by the applicants. We are informed that no rules in regard to the papers to be filed along with applications under the Sales Tax Act have as yet been framed by this Court. Until such time as these rules come to be framed by this Court, the rules which apply in regard to the filling of judgments, orders and other papers in connection with Income-tax References should be deemed to be applicable to references under the Sales Tax Act. A copy of this order shall be sent to all the three Bar Associations and to other Honourable Judges. Application rejected.
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1951 (7) TMI 11 - HIGH COURT OF CALCUTTA
Winding up - Powers of liquidator and Prosecution of delinquent officers and members of company
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1951 (7) TMI 10 - HIGH COURT OF TRAVANCORE-COCHIN
Winding up - Preferential payments ... ... ... ... ..... them and if they have only discharged their duties as required by the agreement entered into by them with the employers no extra compensation promised to them will come within the meaning of section 25, sub-section (2), of the Indian Contract Act. This is clear from the decided cases which are all collected together in the commentary of Pollock and Mulla on the Indian Contract Act, pages 182 and 183, (7th Edition). In these circumstances, we have no hesitation in allowing this appeal and setting aside the order made by the court below. We are leaving the question open as to whether when the list of creditors is ultimately settled the employees in whose favour a bonus has been sanctioned by the directors may come forward and prove their claims just like ordinary creditors. The main question then will be whether they are not persons to whom gifts have been promised. The appellant will be entitled to costs of this appeal payable out of the assets in the hands of the liquidators.
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1951 (6) TMI 25 - HYDERABAD HIGH COURT
... ... ... ... ..... ity of the necessary medical treatment and reasonable amenities have also to be borne in mind. 17. In the result, while we recommend to the Government that adequate facilities and more genial surroundings be afforded to the petitioner or he be permitted to have them as far as possible subject to the discipline of the jail, we dismiss the petitions of Fazl Nawaz Jung. 18. As regards the other applicant Abdul Hamid Khan, the considerations and remarks already made apply to him also, except that he is suffering from Spondylitis and Osteo-Arthrities. Dr. Waghrey deposes that it is a disease common with advancing age, that the treatment is mostly palliative and that there is no special treatment for it which cannot be administered in jail. We dismiss his petitions also, while at the same time recommending to the Government that he also may be afforded more genial surroundings and amenities as could reasonably be given. 19. in the result, therefore, all the petitions are dismissed.
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1951 (6) TMI 24 - CALCUTTA HIGH COURT
... ... ... ... ..... rs to me that when that is done "a specific legal remedy" means a remedy which will give the person complaining the specific relief or the precise or particular relief which he will obtain in a mandamus or in an application under Section 45, Specific Relief Act. 47. That being so the view of Banerjee, J., that the Court should not, on the facts of this case issue an order under Section 45, Specific Relief Act was right and must be maintained. A suit filed either at Ali-pore or on the Original Side of this Court would have obtained for the appellant the precise relief which he sought for, namely, a restoration of the water connection. A mandatory injunction could have been granted and such would have been in every respect as convenient, effective and beneficial as an order under Section45, Specific Relief Act. 48. For these reasons the application was rightly dismissed by Banerjee, J., and accordingly the appeal fails and is dismissed with costs. Das, J. 49. I agree.
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1951 (6) TMI 23 - BOMBAY HIGH COURT
... ... ... ... ..... uch further information, as it may deem necessary, from the appropriate Government or from the person concerned, and, if in any particular case it considers it essential, after hearing him in person, Submit its report to the appropriate Government. It is clear, therefore, that the question whether the Advisory Board should call for any further information from the detenue or should give him an opportunity of being heard in person is left entirely to the discretion of the Advisory Board, It is not incumbent upon the Board to give an opportunity to the detenue to make a representation to them, nor is it incumbent upon them to hear him in person. Therefore, in this particular submission also of Mr. Sule viz. that no opportunity was given to the detenue for making a representation to the Advisory Board and that therefore the detention from that point onward is bad, we find no substance. 41. The net result, therefore, is that the application deserves to fail and must be dismissed.
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1951 (6) TMI 22 - HIGH COURT OF PUNJAB
... ... ... ... ..... orities it appears to me that the correct interpretation of Section 34 is that the evasion or escape of Income Tax must be discovered as a consequence of fresh price of definite information received by the Income Tax Officer and where the Income Tax Officer has already completed an assessment upon certain date he cannot use the same date for revising assessment under Section 34. The figure received from Ahmedabad in the present cases cannot use the same data for revising assessment under Section 34. The figure received from Ahmedabad in the present case cannot be said to constitute fresh information as they were received in reply to letter which the Income Tax Officer has already sent and this letter was sent as consequence of the declaration made by the assessees themselves namely that they had a 7/16th share in the Ahmedabad firm. I would therefore answer the question referred to us in the negative and allowed ₹ 100 as costs to the assessees. Harnam Singh, J. I agree.
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1951 (6) TMI 21 - HIGH COURT OF PUNJAB AND HARYANA
... ... ... ... ..... the second question. Mr. Bajaj, who appeared on behalf of the assessee, was not able to point to any provisions of law whereby the decision of the Appellate Assistant Commissioner could be held as res judicata or binding in the present case. The Appellate Assistant Commissioner had on November 14, 1946, held that these share were originally the property of a joint Hindu family consisting of Shorilal and Kidar Nath. In the present case the finding is that the shares were held by Shorilal alone and the transfer in favour of Kidar Nath was gratuitous. The finding in the first case is clearly not res judicata. The second question also therefore must be answered in the affirmative. In the circumstances I would answer this reference by replying to both then question proposed in the affirmative. In the circumstance of the case, however, I make no order as to costs. Counsels fee in this case is assessed at ₹ 200. Harnam Singh, J. I agree. Reference answered in the affirmative.
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1951 (6) TMI 20 - PUNJAB AND HARIYANA HIGH COURT
... ... ... ... ..... by this Court by a mandate or order under Article 226 of the Constitution with the proceedings of the Controller at this stage. In the circumstances disclosed here, it would not be consonant to right and justice to do so. It is impossible to ask him to withdraw his notice. It is impossible to ask him not to make his report. It cannot be anticipated what his report would be or whether he would make a recommendation that an Administrator be appointed. It is impossible to ask the Central Government not to consider that report or to ask it not to make an order on that report as no report has yet been made. Whatever may be said regarding the case against the Controller, no case whatever has been made out for the issue of any order or direction to the Central. Government. The Union of India was a wholly unnecessary party in this case. 148. For the reasons given above, I would dismiss these petitions. The petitioners will pay the costs of the Controller and the costs of the Union.
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1951 (6) TMI 19 - CALCUTTA HIGH COURT
... ... ... ... ..... 1937 64 IA 28; 5 ITR 90) . The same must obviously be the position under the Excess Profits Tax Act as well, since that also is an all-India Statute of general application. Besides, so far as the powers of the karta are concerned, they are the same under both the schools, at least in regard to matters such as entering into business partnerships with strangers ; and if anything, when a karta enters into such a partnership, there is less reason for saying in the case of a Dayabhaga karta that, by his act, all the members of the family become partners, because under the Dayabhaga, there is only unity of possession but no unity of ownership. Reference in this connection may be made to Mayne's Hindu Law, 17th Edition, p. 369. For the reasons given above, I am of opinion that the answer to the question referred should be in the affirmative. The Commissioner of Excess Profits Tax, West Bengal, is entitled to the costs of this reference and will have them. Das Gupta, J.-I agree.
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