|
Advanced Search Options
Case Laws
Showing 101 to 120 of 518 Records
-
2000 (3) TMI 1025
Issues Involved:
1. Whether the right to sue survives in favor of the respondents upon the death of the original plaintiff?
Analysis:
The revision application challenged an order allowing the respondents to be brought on record as the legal representatives of the deceased plaintiff in a suit. The petitioner argued that since the suit was based on actions taken by the deceased plaintiff as a director of a company, the right to sue did not survive after her death. The petitioner relied on legal precedents to support this argument.
On the contrary, the respondents contended that the suit challenged a resolution allegedly passed improperly, affecting their shareholding in the company. They argued that the right to sue persisted in their favor even after the death of the original plaintiff. Legal precedents were cited to support this position as well.
The central issue for consideration was whether the right to sue continued for the respondents following the death of the original plaintiff. It was noted that the deceased plaintiff held a significant shareholding in the company before the resolution under dispute. Citing decisions by the Apex Court, it was established that the legal representatives of a deceased shareholder inherit the rights associated with the shares, enabling them to seek legal recourse in case of mismanagement.
The court emphasized that the shareholders' rights, including participation in management and seeking relief for mismanagement, extend to their legal representatives after their demise. In this case, the respondents, as legal representatives of the deceased plaintiff, acquired the right to the shareholding in question. Consequently, the right to sue in the matter was deemed to have survived and was upheld for the respondents.
The court distinguished the cases cited by the petitioner, clarifying that they were not directly applicable to the circumstances at hand. It was highlighted that the relief sought in the present suit was not for personal benefit but related to the inheritance of shareholding rights. The court further differentiated the legal principles discussed in those cases from the situation under consideration.
Ultimately, based on the legal principles established by the Apex Court and the specific facts of the case, the court found no grounds to interfere with the order allowing the respondents to be included as legal representatives and pursue the suit. Consequently, the petition was dismissed, and costs were not awarded, with the interim order being vacated.
-
2000 (3) TMI 1024
Issues Involved
1. Approval of the scheme of amalgamation between Asian Coffee Ltd. (ACL) and Consolidated Coffee Limited (CCL).
2. Fairness and reasonableness of the share exchange ratio.
3. Allegations of bias in the valuation process.
4. Adequacy of information provided to shareholders.
5. Objections raised by the Registrar of Companies.
Detailed Analysis
1. Approval of the Scheme of Amalgamation
The primary issue was the approval of the scheme of amalgamation between ACL and CCL under sections 394 and 391(2) of the Companies Act. The appellants challenged the scheme, particularly the share exchange ratio, and sought a revaluation by an independent auditor. The High Court of Karnataka had already approved similar schemes for three other companies.
2. Fairness and Reasonableness of the Share Exchange Ratio
The appellants contended that the exchange ratio of 6:1 was unfair and suggested a ratio of at least 3:1 based on a report by chartered accountants Narasimha Rao and Associates. The learned company judge found no material to hold the valuation as unfair or unreasonable and concluded that the scheme was just, fair, and reasonable. The court's role was deemed supervisory, not appellate, and it should refrain from re-evaluating the share exchange ratio unless there were inherent defects or mala fides.
3. Allegations of Bias in the Valuation Process
The appellants argued that the valuation was biased as M. N. Raiji and Co., statutory auditors of CCL, and A. F. Ferguson and Co., auditors of an associated company, were involved. The court rejected this contention, stating that professional chartered accountants are expected to perform their duties independently. Furthermore, the valuation was also reviewed by ANZ Grindlays Bank Ltd., an independent expert agency. The court found no reasonable likelihood of bias.
4. Adequacy of Information Provided to Shareholders
The appellants claimed that they were not provided with sufficient details to object effectively to the share exchange ratio. The court held that the requisite information and documents were furnished as per sections 391 and 393 of the Companies Act. The valuation report was available for inspection, and no further clarifications were sought by the appellants before the general meeting. The court emphasized that it is not open to members to use the court process to make a roving enquiry into every detail post the decision taken by the general body.
5. Objections Raised by the Registrar of Companies
The Registrar of Companies argued that the exchange ratio was against the interest of minority shareholders and favored Tata Tea Ltd. (TTL). The court noted that Saptagiri Agro Industries Ltd., whose shares were part of the amalgamation, had become a sick company, thereby diminishing the value of its shares. This objection was not accepted by the Karnataka High Court either. The court found that the valuation was done independently and relevant factors were considered, with no demonstrable mala fides.
Conclusion
The court concluded that the scheme of amalgamation was approved by an overwhelming majority, including financial institutions, and there was no merit in the appeals. The appeals were dismissed without costs.
-
2000 (3) TMI 1022
Issues Involved:
1. Professional negligence and misconduct by the appellant advocate.
2. Jurisdiction of Consumer Forums over professional negligence of advocates.
3. Evaluation of evidence and material on record to establish professional negligence.
Detailed Analysis:
1. Professional Negligence and Misconduct by the Appellant Advocate:
The complainant, a tenant, had engaged the appellant, an advocate, to represent him in a writ petition before the High Court. The complainant alleged that the appellant impersonated another advocate, did not properly represent his case, and failed to press for contempt proceedings against the landlady. The District Forum found the appellant guilty of professional negligence and ordered compensation and costs. However, upon appeal, it was held that the appellant had acted based on the complainant's instructions, and the High Court's order was in favor of the complainant. The appellant had consulted the complainant and followed the court's suggestion, which was accepted by the complainant. No evidence was found to support the allegations of impersonation or negligence.
2. Jurisdiction of Consumer Forums Over Professional Negligence of Advocates:
The judgment clarified that advocates, like other professionals, offer services for consideration and thus fall under the definition of 'service' in the Consumer Protection Act, 1986. Despite the existence of the Advocates Act, 1961, Consumer Forums have jurisdiction to entertain complaints against advocates for professional negligence, as per Section 3 of the Consumer Protection Act, which states that the provisions of the Act are in addition to and not in derogation of any other law.
3. Evaluation of Evidence and Material on Record to Establish Professional Negligence:
The court emphasized that professional negligence must be established with sufficient evidence. In this case, the appellant provided a detailed account of the proceedings before the High Court, which was not disputed by the complainant. The High Court's order did not reference the contempt proceedings, and the appellant had acted upon the complainant's consent. The District Forum had overlooked these crucial details, leading to an erroneous judgment. The appellate court found that the complainant failed to prove professional negligence or misconduct by the appellant.
Conclusion:
The appeal was allowed, and the order of the District Forum was set aside. The complaint against the appellant was dismissed, and the parties were directed to bear their own costs. The judgment highlighted the need for Consumer Forums to carefully scrutinize and consider all material facts and evidence before arriving at a decision.
-
2000 (3) TMI 1021
Issues:
Challenge to notice of invocation of bank guarantee on grounds of being a sick industrial unit, jurisdiction of court in entertaining the writ application, interpretation of bank guarantee clauses, relevance of sickness declaration under Acts, plea of fraud or special equity for injunction against bank guarantee.
Detailed Analysis:
1. Challenge to Notice of Invocation of Bank Guarantee:
The petitioner challenged the invocation of a bank guarantee issued by the respondent, claiming to be a sick industrial unit under the West Bengal Relief Undertakings Act, 1972, and the Sick Industrial Companies Act, 1985. The petitioner argued that the invocation was arbitrary and illegal due to ongoing disputes with the respondent regarding a contract for rehabilitation work.
2. Jurisdiction of Court:
The petitioner contended that disputes between public sector undertakings should be resolved through government arbitration, and argued that the court had jurisdiction to entertain the writ application since the invocation notice was served in Calcutta. The respondent, however, asserted that the High Court had jurisdiction based on the exclusive jurisdiction clause in the bank guarantee.
3. Interpretation of Bank Guarantee Clauses:
The respondent highlighted the clauses of the bank guarantee, emphasizing its unconditional nature and the bank's obligation to pay without reservation. The bank guarantee explicitly stated that the bank could enforce it without proceeding against the contractor, making it an independent contract between the bank and the beneficiaries.
4. Relevance of Sickness Declaration under Acts:
The petitioner's argument based on being a sick unit under the Acts of 1972 and 1985 was rejected by the court. Citing a previous Division Bench judgment and a Supreme Court decision, the court held that the sickness declaration was irrelevant to the enforcement of the bank guarantee, as the guarantee was a separate contract independent of the parent contract.
5. Plea of Fraud or Special Equity for Injunction:
The respondent contended that no fraud or special equity was pleaded by the petitioner, and therefore, no cause of action existed for an injunction against the bank guarantee. The court concurred, stating that without such allegations, there was no basis for interference in the enforcement of the unconditional bank guarantee.
In conclusion, the court dismissed the writ application, finding no fraud pleaded and the bank guarantee to be unconditional. The court held that without fraud or special equity, there was no justification for interfering with the bank's right to enforce the guarantee. The judgment emphasized the independence of the bank guarantee contract and the lack of grounds for injunction against its invocation.
-
2000 (3) TMI 1020
Issues:
Quashing of orders passed by the 5th Metropolitan Magistrate in a criminal case under section 138 of the Negotiable Instruments Act, 1881, regarding recalling of a witness and marking a document.
Analysis:
The petitioner, a complainant in a case under section 138 of the Negotiable Instruments Act, sought to prosecute the respondents for the offence. The petitioner filed a petition before the trial court to recall a witness and receive a document, a resolution of the board of directors, to be marked through the witness. The trial court dismissed the application, stating that allowing the document to be marked would amount to filling up lacunae in the case. The court referred to a judgment that was misread, as the document in question was prior to the filing of the complaint, not a subsequent authorization. The court found that the trial court misappreciated the circumstances, noting that the principle against filling gaps in the prosecution case does not apply to correcting an honest mistake made earlier. The court emphasized that parties should not be punished for mistakes and allowed the document to be produced and marked, providing the accused an opportunity to question its validity during cross-examination.
The High Court, in its judgment, observed that the trial court had misunderstood the situation and allowed the petition to quash the order of the 5th Metropolitan Magistrate. The High Court held that the document sought to be produced should have been permitted as it was an attempt to correct an honest mistake made earlier, not to fill gaps in the prosecution case. The court emphasized that the ends of justice should be served, and parties should not be penalized for genuine errors. By allowing the document to be marked and providing the accused with an opportunity to challenge its authenticity during cross-examination, the court ensured fairness in the proceedings. The judgment highlighted the importance of rectifying mistakes made in good faith and upheld the petitioner's request to recall the witness and mark the document.
In conclusion, the High Court's judgment in this case revolved around the issue of allowing the marking of a document through a recalled witness in a criminal case under the Negotiable Instruments Act. The court emphasized the distinction between correcting genuine mistakes and impermissible attempts to fill gaps in the prosecution case. By quashing the trial court's order and permitting the document to be produced, the High Court upheld the principles of justice and fairness in the legal proceedings.
-
2000 (3) TMI 1017
Issues:
1. Setting aside an order of admission dated 16-4-1999.
2. Justification for absence of the company during the hearing.
3. Validity of reconciliation statement and its impact on the petition.
4. Invocation of arbitration clause and its relevance to the company petition.
5. Compliance with payment conditions as per contract clause 7.3.
6. Admission of liability by the company despite issues raised by the petitioner.
Analysis:
1. The application sought to set aside an order of admission dated 16-4-1999 due to the company's absence during the hearing. The company claimed papers were misplaced, but the court found this explanation insufficient, stating negligence could not excuse the absence. The petition was admitted ex parte, and the delay was not justified.
2. The validity of the reconciliation statement was challenged by the petitioner, claiming it was antedated and not legally valid. However, the court found the statement to be genuine and upheld its validity. The reconciliation statement indicated the company's liability, and the court accepted it as presented.
3. The invocation of the arbitration clause by the petitioner was raised as a point of contention, suggesting disputes between the parties. The court dismissed this argument, stating that arbitration proceedings or civil suits do not bar the maintainability of a company petition. The existence of disputes did not invalidate the petition.
4. Compliance with payment conditions under contract clause 7.3 was questioned, as invoices were allegedly not certified by the company as required. The respondent argued that the reconciliation statement waived this condition, and a letter admitting liability further supported this claim. The court accepted the liability admission, even if the reconciliation statement did not fully comply with the contract clause.
5. Ultimately, the court dismissed the application, finding no merit in the arguments presented by the applicant. Despite the challenges raised regarding the reconciliation statement, arbitration clause invocation, and payment conditions, the court upheld the admission of the company's liability. The application to set aside the order of admission was rejected based on the evidence and arguments presented during the hearing.
-
2000 (3) TMI 1016
Issues:
- Appeal against the judgment of the District Consumer Forum regarding non-payment of National Savings Certificate (NSC) on maturity.
- Interpretation of rules regarding issuance of NSCs in the name of Hindu Undivided Family (HUF).
- Applicability of the rule on administrative convenience in cases of NSC accounts opened contrary to regulations.
Analysis:
1. The case involved an appeal against the District Consumer Forum's decision on a complaint where the complainant had taken an NSC for Rs. 10,000, and the opposite party refused to pay the maturity amount. The complainant sought Rs. 20,150 with interest, costs, and compensation.
2. The District Forum decreed the complaint, ordering payment of Rs. 20,150 with interest and costs. The appellant challenged this order, arguing that NSCs cannot be issued in the name of HUF, citing relevant rules.
3. Referring to a previous case, the appellant highlighted that administrative rules should not hinder interest payment on NSCs opened contrary to regulations. The responsibility for ensuring compliance with rules lies with the issuing authority, not the depositor.
4. The judges found the District Forum's decision correct based on the facts and ruled in favor of the complainant. They dismissed the appeal and upheld the District Forum's judgment without imposing any costs.
This judgment clarifies the interpretation of rules governing the issuance of NSCs, emphasizing that depositors should not be penalized for administrative oversights by the issuing authority. It underscores the importance of upholding consumer rights and ensuring fair treatment in financial transactions, especially concerning government savings schemes.
-
2000 (3) TMI 1013
Issues:
1. Failure to regularize overdraft by providing securities.
2. Dismissal of writ petition due to availability of alternate remedy.
3. Evasion of deposit requirement for filing an appeal under the Act.
Issue 1: Failure to regularize overdraft by providing securities
The judgment highlights a case where a debtor, Kavita Pigments & Chemical (P.) Ltd., overshot its cash credit limit with Allahabad Bank, Bokaro Steel City Branch. Despite running an overdraft and being requested by the bank to fortify the position by providing securities, the debtor failed to comply. The bank eventually issued a notice dated 27-2-1997, signaling the end of their patience. Subsequently, the bank filed an application under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, before the Tribunal. The Tribunal dismissed the debtor's request to cross-examine the bank's witnesses, leading to a writ petition challenging the lack of a final order determining the debt.
Issue 2: Dismissal of writ petition due to availability of alternate remedy
The writ petition was initially dismissed by a learned Judge on the grounds that the debtor could utilize the alternate remedy available under the Act. The debtor then filed a letters patent appeal against this dismissal. Lengthy arguments were made emphasizing the illegality of the learned Judge's order, contending that the alternate remedy could only be utilized after total adjudication on the determination of debts. The bank indicated a debt of Rs. 18,38,475.24 as of 28-12-1997, highlighting the debtor's failure to maintain creditworthiness and clear the overdraft.
Issue 3: Evasion of deposit requirement for filing an appeal under the Act
The judgment also addresses the debtor's reluctance to file an appeal under the Act, citing the requirement to deposit 75% of the amount due. The debtor claimed that the amount was yet to be determined by a final order, making the appeal non-maintainable. However, the court pointed out that the legislature provided this deposit requirement to ensure the deposit of three-quarters of the undisputed amount. The debtor's evasion of this deposit obligation was seen as an attempt to avoid their financial responsibility.
In conclusion, the Court dismissed the appeal, emphasizing that interference was not warranted in this case. The judgment underscores the importance of upholding banking ethics, maintaining creditworthiness, and fulfilling financial obligations to prevent bad debts that could disrupt the economy and burden innocent taxpayers.
-
2000 (3) TMI 992
Ex parte assessment - Held that:- Appeal allowed. Passage quoted from the Tribunal's order shows that the Tribunal was of the view that once the order is quashed by the Assistant Commissioner, he could not in law remand the case for a decision afresh. As has been noted, before the Assistant Commissioner the counsel for the respondent had contended that the ex parte order should have been set aside because no notice had been received. When principles of natural justice are stated to have been violated it is open to the appellate authority, in appropriate cases, to set aside the order and require the assessing officer to decide the cases de novo. This is precisely what was directed by the Assistant Commissioner and the Tribunal, in our opinion, was clearly in error in taking a contrary view.
-
2000 (3) TMI 987
Jurisdiction of High court - Held that:- Appeal allowed. On the plain language of the section and on examining the impugned notice, we are not in a position to come to the conclusion that either the revisional authority lacked jurisdiction in issuing the notice in question nor can it be said that the necessary ingredients for exercising that power, as conferred by the statute have not been specified. In this view of the matter, no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the notice issued by the revisional authority
-
2000 (3) TMI 981
The case involves a dispute over duty payment and refund for vacuum pan sugar by a Sugar Factory, with allegations of unjust enrichment. The matter is referred to the Hon'ble Allahabad High Court for consideration of legal questions related to the introduction of Section 11D and its impact on incentive schemes. The Tribunal relies on a previous decision and requests appropriate orders from the High Court.
-
2000 (3) TMI 980
Issues:
1. Claim for clearance free of duty under notification 203/92.
2. Allegation of availing Modvat credit contrary to notification condition.
3. Non-receipt of show cause notices or hearing intimation.
4. Requirement for importer to demonstrate compliance with notification conditions.
5. Lack of evidence for confirming duty demand.
6. Customs officers' responsibility to demand compliance evidence before clearance.
Analysis:
1. The appellants imported goods and claimed duty-free clearance under notification 203/92. Subsequently, they were alleged to have availed Modvat credit contrary to the notification condition. The Commissioner confirmed the duty demand as there was no reply to the notice and no appearance during the hearing.
2. The appellants contended that they did not receive show cause notices or hearing intimation. The Tribunal noted the absence of an affidavit affirming non-receipt and highlighted the importer's responsibility to demonstrate compliance with notification conditions, especially regarding Modvat credit availed during importation.
3. The Tribunal emphasized that if the department extended notification benefits based on the importer's declaration, it was the department's duty to prove any non-compliance. In this case, the Commissioner failed to provide a basis for confirming the duty demand, as no evidence was presented to show that Modvat credit was availed of, and no specific reasons were given for the alleged mis-declaration or suppression.
4. The Tribunal rejected the department's argument regarding the Custom House's organizational structure affecting import-export procedures. It stated that Customs officers should have demanded compliance evidence before allowing clearance to safeguard the department's interests. Since this was not done, the Commissioner's order confirming the duty demand was not justified.
5. Ultimately, the Tribunal found no reason to uphold the Commissioner's order, allowing the appeals and setting aside the impugned orders. The judgment highlighted the importance of providing evidence and complying with notification conditions before confirming duty demands, emphasizing the Customs officers' responsibility in ensuring compliance before clearance.
-
2000 (3) TMI 975
Whether damaged wheat purchased by the original respondent-dealer which is subjected to certain process before being sold is "cattle fodder" for the purpose of the notification dated June 5, 1985?
Held that:- Appeal dismissed. What is exempted under the notification of June 5, 1985 is cattle fodder. In generic sense the expression "cattle fodder" is inclusive of everything that is fed to cattle including damaged wheat. In the present case there is no such exclusion of the damaged wheat that is processed and used as feed for the cattle. If that is so there is any justification to interfere with the view taken by the High Court.
-
2000 (3) TMI 961
Validity of Act 25 of 1988 passed by the Andhra Pradesh State Legislature which came into force on September 6, 1988 having retrospective effect from July 8, 1983
Whether the levy with retrospective effect from July 8, 1983 was reasonable or not?
Held that:- Appeal dismissed. The High Court proceeded to notice that the holder of a licence in form FL 15 is permitted to sell liquor in quantities of not less than nine litres in sealed or capsuled bottles at any time and in any single transaction to licensees holding the licences in form FL 24, i.e., the (retail licence), FL 17, i.e. (bar licence), etc., and is not permitted to carry on retail sale or allow consumption of liquor in the licensed premises. Licence holder in form FL 24 is permitted to sell liquor obtained only from the wholesale licensees. On the facts stated, the view taken by the High Court is unexceptionable.
-
2000 (3) TMI 953
Review v/s rectification - Held that:- Appeal allowed. It is well-known that the scope of rectification is different from the scope of review though sometimes they may overlap.
In the present case, if the interpretation adopted by the High Court is to be accepted then the provision for review becomes totally redundant or otiose and there will be no difference between the power of review and power of rectification. As stated earlier, the scheme of the Amendment Act is that an application will have to be made to an authority within the specified date for review of the assessment order or such other order, as the case may be, for varying the same to bring it in terms with the Amendment Act while the period of making the order pursuant to rectification is coalesced with section 39 of the Amendment Act imposing certain limitations of time. Those limitations cannot be read into sub-section (2) of section 39 of the Amendment Act.
-
2000 (3) TMI 949
Validity of section 12-A of the Himachal Pradesh General Sales Tax Act, 1968 and rule 31-A of the Himachal Pradesh General Sales Tax Rules questioned
Held that:- Appeal allowed. Following the decision in Steel Authority of India case [2000 (2) TMI 729 - SUPREME COURT OF INDIA] set aside the order made by the High Court by allowing the writ petition and quashing the aforesaid provisions as being beyond the purview of the Himachal Pradesh State Legislature
-
2000 (3) TMI 943
Issues:
1. Procedural irregularity in the advertisement for auction.
2. Discrepancy in the upset price fixed by the Sale Committee.
3. Failure to disclose crucial information about the property in the advertisement.
Procedural Irregularity in the Advertisement:
The applicant sought relief due to a procedural defect in the auction advertisement, specifically regarding the attachment of the property. The Official Liquidator acknowledged the oversight but argued that the defect had been rectified, and no actual loss or hardship was suffered by the applicant. The Court observed that while the irregularity existed, it was subsequently rectified, and the applicant did not incur any injury or loss. Thus, the Court found no valid reason to set aside the auction based on this procedural irregularity.
Discrepancy in Upset Price Fixed:
The Sale Committee had fixed the upset price at Rs. 7,28,00,000, which the applicant contested as arbitrary and contrary to the Court's order specifying Rs. 4,81,00,000 as the upset price. The Official Liquidator defended the higher upset price based on a valuation report indicating the property's value at around Rs. 7.40 crores. The Court noted that the Sale Committee acted reasonably and in the interest of all stakeholders by considering the valuation report and setting a higher upset price to secure better returns for the workers and creditors. Consequently, the Court upheld the Sale Committee's decision and vacated the interim order granted earlier.
Failure to Disclose Crucial Information:
The applicant highlighted that crucial details about the property, such as part of the land being vested in the Government and pending property tax dues, were not disclosed in the advertisement or tender documents. The Court directed the Sale Committee to quash the previous proceedings, invite fresh offers through a new advertisement, and consider including the information about the attached property and other relevant details in the future auction process. Additionally, the Official Liquidator was instructed to assess the impact of the disclosed facts on the property's value to avoid potential future disputes.
In conclusion, the Court addressed the issues of procedural irregularity, upset price discrepancy, and lack of disclosure of essential property information, providing detailed directions to rectify the shortcomings and ensure a fair auction process moving forward.
-
2000 (3) TMI 942
The High Court of Allahabad ruled in favor of the petitioner, Kothari Products Limited, stating that respondent No. 3, 'Parag' International (KNP) Pvt. Ltd., violated the Companies Act by using the registered trade mark 'Parag' without the owner's consent. The court directed the Registrar of Companies to cancel respondent No. 3's registration within one month and allowed for a name change if compliant with the law.
-
2000 (3) TMI 941
Issues Involved:
1. Whether the offence under section 73(2B) read with section 73(2A) of the Companies Act, 1956 is a continuing offence within the meaning of section 472 of the Code of Criminal Procedure, 1973.
2. Whether the complaint filed on 30-11-1993 was time-barred under section 468 of the Code.
3. Whether the allegations in the complaint make out a case for an offence under section 73(2B) of the Companies Act, 1956.
4. Whether the complainant suppressed material facts to mislead the court regarding the period of limitation.
Detailed Analysis:
1. Continuing Offence under Section 73(2B) of the Companies Act, 1956:
The primary issue is whether the offence under section 73(2B), read with section 73(2A) of the Companies Act, 1956, is a continuing offence within the meaning of section 472 of the Code of Criminal Procedure, 1973. The court examined the language of the statute, the nature of the offence, and the purpose intended to be achieved by constituting the particular act as an offence. It was observed that under section 73(2A), the company is obligated to repay the excess amounts received from applicants forthwith, and failure to do so within eight days makes the company and its directors liable to repay the amount with interest. Section 73(2B) provides for punishment for default in complying with the requirement of section 73(2A). The court concluded that the offence under section 73(2B) is a continuing offence as the liability to repay the excess amount with interest continues until the repayment is made. Therefore, a fresh period of limitation begins to run at every moment of the time during which the offence continues, making section 468 of the Code inapplicable.
2. Limitation Period for Filing the Complaint:
The petitioners argued that since the alleged default was punishable only with fine under section 73(2B), the period of limitation for filing the complaint had expired on 16-8-1992, making the complaint filed on 30-11-1993 time-barred. However, the court held that since the offence under section 73(2B) is a continuing offence, the period of limitation prescribed by section 468 of the Code does not apply. Consequently, the complaint was not time-barred.
3. Allegations in the Complaint:
The petitioners contended that the allegations in the complaint did not make out a case for an offence under section 73(2B). The court noted that it could not make inquiries into disputed questions of fact or record its own findings thereon in the exercise of its jurisdiction under section 482 of the Code. Therefore, the alternative plea that there was no delay in refunding the excess amounts needed to be established before the Trial Court.
4. Suppression of Material Facts:
The petitioners claimed that the complainant had suppressed material facts, particularly the issue of the first show-cause notice dated 17-12-1992, to mislead the court regarding the period of limitation. The court did not specifically address this issue in detail, focusing instead on the nature of the offence and the applicability of the limitation period.
Conclusion:
The court dismissed the petition, holding that the offence under section 73(2B) is a continuing offence, and therefore, the period of limitation under section 468 of the Code does not apply. The Trial Court was directed to proceed with the trial in accordance with the law, uninfluenced by any observations made on the merits of the case. The court also appreciated the assistance rendered by the young Advocate representing the Registrar of Companies.
-
2000 (3) TMI 940
Issues:
1. Validity of notice and unit takeover under section 29 of the State Financial Corporation Act, 1951.
2. Commencement of enquiry under section 16 of the Sick Industrial Companies (Special Provision) Act, 1985.
3. Interpretation of section 22 of the SICA regarding the timing of enquiry commencement.
4. Allegation of the petitioner not being a sick company and the jurisdiction of the court in such matters.
Analysis:
1. The petition challenged a notice dated 25-2-2000 and the subsequent takeover of the unit by the respondent under section 29 of the State Financial Corporation Act, 1951. The petitioner had referred to the Board for Industrial and Financial Reconstruction (BIFR) under the SICA, claiming to be a sick industrial company. The respondent demanded payment, leading to the takeover. The petitioner argued that the action was against the mandate of section 22 of the SICA, as the enquiry had commenced before the notice. The court had to determine the legality of the respondent's actions.
2. The central issue revolved around when the enquiry under section 16 of the SICA should be considered to have started to trigger the application of section 22. Citing a Supreme Court decision, the court emphasized that once the reference was registered and information was sought, the inquiry was deemed to have commenced. In this case, the BIFR had registered the reference and taken action before the notice, activating section 22 and prohibiting the respondent's actions without the Board's consent.
3. The court rejected the respondent's argument that the petitioner was not a sick company, stating that determining sickness was the Board's prerogative under the SICA. The court clarified its role in assessing the respondent's actions' compliance with section 22, which, in this instance, were found to be in violation. Consequently, the court quashed the notice and the unit takeover, directing the respondent to return possession to the petitioner while allowing the respondent to pursue appropriate actions before the BIFR.
4. The judgment highlighted the limited scope of the court's review regarding the respondent's actions under the SICA, focusing on the procedural compliance with section 22 rather than the petitioner's financial status. By upholding the importance of the statutory provisions and the proper sequencing of events, the court ruled in favor of the petitioner, emphasizing the necessity of adhering to the legal framework governing industrial distress situations.
............
|
9911796707
