|
Advanced Search Options
Case Laws
Showing 21 to 40 of 667 Records
-
2007 (10) TMI 706
Issues Involved:
1. Validity of non-bailable warrants and process u/s 82 and 83 Cr.P.C.
2. Observations and conduct of the trial court.
3. Compliance with procedural requirements under Sections 82 and 83 Cr.P.C.
4. Judicial discipline and adherence to High Court orders.
Summary:
1. Validity of Non-Bailable Warrants and Process u/s 82 and 83 Cr.P.C.:
The petitioner sought quashing of orders dated 31st May, 2007, and 25th July, 2007, by the Addl. Sessions Judge, which issued non-bailable warrants and process u/s 82 and 83 Cr.P.C. against him. The High Court initially stayed the execution of these processes provided the petitioner deposited Rs. 2,500/- as adjournment costs and appeared before the trial court on 19th September, 2007. The trial court, however, rejected the bail application and took the petitioner into custody, despite the High Court's order.
2. Observations and Conduct of the Trial Court:
The trial court's comments were deemed uncalled for and cast aspersions on the High Court's functioning. The trial court's observation that there was no cause of action for the High Court's stay order was incorrect, as the process u/s 82/83 Cr.P.C. was not executed in accordance with the law.
3. Compliance with Procedural Requirements under Sections 82 and 83 Cr.P.C.:
The trial court failed to comply with the mandatory provisions of Sections 82 and 83 Cr.P.C. The proclamation u/s 82 Cr.P.C. was issued on 27th July, 2007, directing the petitioner to appear on 29th August, 2007, but the proclamation was only effected on 6th August, 2007, giving less than the required thirty days for the petitioner to appear. Similarly, the proclamation u/s 83 Cr.P.C. was issued on 27th July, 2007, but was only effected on 29th August, 2007, the same day the petitioner was supposed to appear. The trial court's haste to declare the petitioner a proclaimed offender without following due process was evident.
4. Judicial Discipline and Adherence to High Court Orders:
The trial court's actions amounted to judicial indiscipline and disobedience of the High Court's order. The Addl. Sessions Judge lacked basic knowledge of the Code of Criminal Procedure and made inappropriate comments on the High Court's order. The High Court directed that the Addl. Sessions Judge undergo a refresher course at the Delhi Judicial Academy and submit a performance report.
Conclusion:
The High Court quashed the orders issued by the trial court u/s 82 and 83 Cr.P.C. and directed the Registrar General to send copies of the judgment to all Judicial Officers of Delhi for guidance. The trial court record was ordered to be sent back forthwith.
-
2007 (10) TMI 705
Issues Involved:
1. Necessity for appointment of Administrator Pendente Lite.
2. Allegations of waste, mismanagement, and misconduct by the Executor.
3. Legal principles and guidelines for appointing Administrator Pendente Lite.
4. Validity and genuineness of the Will and Codicil.
5. Impact of criminal proceedings against the Executor.
6. Jurisdiction and powers of the probate court in appointing Administrator Pendente Lite.
7. Impact on public shareholders and companies.
8. Adequacy of interim orders to preserve the Estate.
Detailed Analysis:
1. Necessity for Appointment of Administrator Pendente Lite:
The court examined whether the necessity for appointing an Administrator Pendente Lite was established. The principle is that such an appointment is discretionary and should be based on established legal principles, including the necessity to preserve the Estate. The court found that the Respondents did not establish a case of necessity based on waste, mismanagement, or misconduct by the Executor. It emphasized that the appointment should not be made lightly and must be supported by substantial evidence of necessity.
2. Allegations of Waste, Mismanagement, and Misconduct by the Executor:
The court scrutinized the allegations against the Executor, including claims of suppression of assets, undervaluation of the Estate, and improper transmission of shares. It found no substantial evidence of waste, mismanagement, or misconduct. The court noted that the Executor had taken control of the shares and managed the Estate without any proven mismanagement. The court also highlighted that the Executor's actions were in line with his duties and obligations.
3. Legal Principles and Guidelines for Appointing Administrator Pendente Lite:
The court referred to established legal principles, including the necessity of preserving the Estate, the analogy to the appointment of a Receiver, and the requirement of a bona fide litigation touching the validity of the Will. The court emphasized that the appointment should be based on necessity, not merely on the existence of a dispute. It found that the Respondents failed to demonstrate such necessity.
4. Validity and Genuineness of the Will and Codicil:
The court examined the challenges to the validity of the Will and Codicil, including allegations of undue influence, lack of testamentary capacity, and suspicious circumstances. It noted that these issues were to be decided in the pending probate proceedings and could not be grounds for appointing an Administrator Pendente Lite. The court also considered the existence of mutual Wills from 1982 but found that the original documents were not produced, raising questions about their genuineness.
5. Impact of Criminal Proceedings Against the Executor:
The court addressed the impact of pending criminal proceedings against the Executor. It found that these proceedings were initiated at the behest of the Respondents and were not sufficient grounds for declaring the Executor unfit. The court emphasized that the Executor had not been proven guilty and that the criminal cases were private complaints, not state-initiated actions.
6. Jurisdiction and Powers of the Probate Court in Appointing Administrator Pendente Lite:
The court examined the jurisdiction and powers of the probate court in appointing an Administrator Pendente Lite. It found that the probate court had overstepped its jurisdiction by directing the rectification of share registers, appointing administrators as directors, and dissolving the existing boards of companies. The court held that such actions were contrary to the provisions of the Companies Act and beyond the probate court's authority.
7. Impact on Public Shareholders and Companies:
The court considered the impact of appointing an Administrator Pendente Lite on public shareholders and companies. It noted that the shares in question were held by public shareholders and that the companies were not parties to the probate proceedings. The court found that appointing an Administrator Pendente Lite without notifying the public shareholders would adversely affect their interests and the companies' management.
8. Adequacy of Interim Orders to Preserve the Estate:
The court evaluated the adequacy of interim orders to preserve the Estate. It found that the existing interim injunctions were sufficient to protect the Estate and that appointing an Administrator Pendente Lite was unnecessary. The court directed the Executor to provide detailed accounts of the dividends received and to maintain a separate account for the dividends, ensuring that the funds were used only for preserving the Estate.
Conclusion:
The court concluded that the Respondents failed to establish a case of necessity for appointing an Administrator Pendente Lite. It set aside the order of the Hon'ble First Court appointing administrators over the controlling block of shares and directed the Executor to continue managing the Estate with specific safeguards to ensure its preservation. The appeals and cross-objections were disposed of accordingly.
-
2007 (10) TMI 704
Issues involved: Challenge to show cause notice u/s Rule 25 of Central Excise Rules, 2002; Validity of circular issued by Central Board of Excise and Custom on 01.02.2007; Jurisdiction of High Court to interfere at show cause notice stage.
Challenge to show cause notice: The petitioner Company challenged the show cause notice issued by the Department, alleging non-payment of excise duty amounting to &8377; 2709213/- on finished goods due to wrongly availing benefits of Notification No. 30/2004 CE. The petitioner approached the Court without replying to the notice, citing a circular issued by the Central Board of Excise and Custom on 01.02.2007 as sealing their defense before the adjudicating authority.
Validity of circular: The Department contended that the circular was clarificatory and not intended to dilute established law, asserting that the petitioners wrongly availed credit under the said circular. The petitioner argued that the adjudicating authority would be bound by the circular, making it unnecessary to reply to the show cause notice. The petitioner maintained that they did not wrongly avail credit and challenged the circular's validity, seeking Court intervention at the show cause notice stage.
Jurisdiction of High Court: The Court cited a Supreme Court decision emphasizing reluctance to interfere at the show cause notice stage unless the issuing authority lacks jurisdiction. It was noted that the authority must adjudicate in accordance with the law, and the Court should not disrupt proceedings based on a circular issued after the show cause notice. The Court declined to quash the notice, directing the authority to decide based on evidence and legal provisions.
Precedents and Final Decision: Reference was made to legal precedents regarding availing credit and exemption notifications. The Court highlighted that the present case required the authority to consider specific circumstances before making a final decision. Ultimately, the writ petitions were dismissed with costs imposed on the petitioners, who were directed to deposit the amount before the adjudicating authority within two weeks.
-
2007 (10) TMI 703
The Karnataka High Court ruled that interest under Section 11AB cannot be levied if modvat credit remains unutilized and is reversed by the assessee before any show cause notice is issued. The judgment was based on a similar ruling by the Punjab & Haryana High Court. The petition was allowed in favor of the assessee.
-
2007 (10) TMI 702
Issues Involved:
1. Right to Privacy
2. Maintainability of Revision under Article 227 of the Constitution of India
3. Interim Injunction
4. Jurisdiction of High Court under Article 227
Detailed Analysis:
1. Right to Privacy:
The core issue revolves around the plaintiff's claim for a permanent injunction to restrain the defendant from telecasting a serial about her deceased husband, Veerappan, without her consent, asserting it would violate her right to privacy. The defendant countered that Veerappan's life story is public knowledge, thus negating the privacy claim. The judgment referenced R. Rajagopal v. State of T.N., where the Supreme Court held that the right to privacy is implicit in Article 21 of the Constitution. However, this right diminishes when the individual has already been in the public eye. The court noted that Veerappan's life had been widely publicized for over two decades, thus the plaintiff's privacy claim was not maintainable. The court emphasized that privacy rights must be balanced with the public's right to information, especially when the information is already in the public domain.
2. Maintainability of Revision under Article 227 of the Constitution of India:
The defendant filed the revision petition under Article 227, challenging the interim injunction granted by the first appellate Judge. The plaintiff argued that an effective remedy of appeal was available under Order 43 Rule 1 of CPC, and thus the revision petition under Article 227 was not maintainable. However, the court noted that the revision petitioner had also filed an application to convert the revision into a C.M.A., acknowledging the procedural aspect. The court highlighted its supervisory jurisdiction under Article 227 to intervene in cases where lower courts pass orders without proper reasoning or jurisdiction.
3. Interim Injunction:
The trial court had initially dismissed the plaintiff's application for an interim injunction, stating that the telecast would not cause any social stigma to the plaintiff and her daughters. However, the first appellate Judge granted an interim injunction without detailed reasoning, merely stating that the plaintiff's apprehension needed protection. The High Court criticized this one-line order for lacking substantive reasoning, especially when the trial court had provided a detailed discussion. The High Court underscored the necessity for lower courts to pass well-reasoned orders, particularly in sensitive matters.
4. Jurisdiction of High Court under Article 227:
The court reaffirmed its jurisdiction under Article 227, citing several precedents where the High Court intervened to correct lower court orders that were unsustainable or without jurisdiction. The judgment referenced Surya Dev Rai v. Ram Chander Rai, emphasizing that the High Court's supervisory power is discretionary and should be exercised to correct errors that could not be rectified later. The court concluded that the first appellate Judge's order was perverse and warranted interference under Article 227.
Conclusion:
The High Court set aside the interim injunction granted by the first appellate Judge and directed the appellate court to dispose of the appeal expeditiously. The court recorded an undertaking from the defendant that the tele-serial would not depict the personal life of the plaintiff and her daughters but would be based on public records and field information. The judgment underscores the balance between the right to privacy and the public's right to information, the necessity for reasoned judicial orders, and the High Court's supervisory role under Article 227.
-
2007 (10) TMI 701
Anticipatory bail - Seeking grant of protection u/s 438 - Whether courts had the inherent power to pass an order of bail in anticipation of arrest? - HELD THAT:- The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.
Thus, we direct that within a period of four weeks from today the respondents shall surrender before the concerned Court and shall seek regular bail.
We make it clear that we are not expressing any opinion on the merits of the case. When the bail application is moved in terms of Section 439 of the Code before the concerned Court the same shall be considered in its proper perspective in accordance with law. If an application for bail is moved, the concerned Court would do well to dispose it of on the day it is filed. Learned Counsel appearing for the State has undertaken that all relevant records shall be produced before the Court dealing with the bail application and no adjournment shall be asked for on the ground of non-availability of records if the accused-respondents intimate the date on which they purpose to surrender three days in advance.
Further, it is baffling to note that the accused and informant referred to particular positions of case diary. At the stage the bail applications were heard by the High Court, legally they could not have been in a position to have access to the same. The papers which are to be supplied to the accused have been statutorily prescribed. The Courts should take serious note when the accused or the informant refers to the case diary to buttress a stand.
The appeal is disposed of accordingly.
-
2007 (10) TMI 700
Application for grant of anticipatory bail - Commission of an offence punishable under Sections 376, 342 r/w Section 34 of the Indian Penal Code (IPC) and u/s 5 of the Prevention of Immoral Trafficking Act - Respondents herein comprise of police officers, politicians and a businessman - HELD THAT:- Parameters for grant of anticipatory bail in such a serious offence, being u/s 376, 376(2)(g) IPC, in our opinion, are required to be satisfied. [D.K. Ganesh Babu v. P.T. Manokaran and Ors.[2007 (2) TMI 701 - SUPREME COURT].
A mistake in regard to her age as recorded in the First Information Report or the first medical document or even in her supplementary affidavit should yield to the public documents which have been produced by the prosecution at this stage. Even before the learned Chief Judicial Magistrate, she disclosed her date of birth to be 22.06.1991. Therefore, even according to that she was below 16 years of age.
Immoral conduct on the part of police officers should not be encouraged. We fail to understand as to how the police officers could go underground. They had been changing their residence very frequently. Although most of them were police officers, their whereabouts were not known. During the aforementioned period attempts had been made even by Mahananda to obtain the custody of the girl at whose instance, we do not know. On the one hand, Mahananda had been praying for the custody of the girl and Sunita, the mother of the girl, as noticed hereinbefore, had affirmed an affidavit in relation to her date of birth. These may not be acts of voluntariness on their part. It, therefore, in our opinion, is a case where no anticipatory bail should have been granted.
We may also notice that the High Court itself has refused to grant regular bail to the accused against whom charge-sheet has been submitted. The learned Session Judge also did not grant bail to some of the accused persons. If on the same materials, prayer for regular bail has been rejected, we fail to see any reason as to why and on what basis the respondents could be enlarged on anticipatory bail.
Thus, we are of the opinion that the High Court ought not to have granted anticipatory bail to the respondents. The impugned judgment, therefore, cannot be sustained which is set aside accordingly. The appeal is allowed.
The respondents may surrender before the Chief Judicial Magistrate and move an application for regular bail, which may be considered on its own merit without being influenced, in any way, by the judgment of this Court.
-
2007 (10) TMI 699
Issues Involved:
1. Lawful possession of the suit schedule properties.
2. Application of the principle of res judicata.
3. Suppression of material facts by the plaintiff.
Summary:
1. Lawful Possession of the Suit Schedule Properties:
The plaintiff claimed possession of the suit schedule properties based on a registered sale deed dated 16-3-1967 and subsequent orders from the Tahsildar and the High Court in W.P. No. 2700 of 1981. The Trial Court decreed in favor of the plaintiff, but the lower Appellate Court reversed this decision, concluding that the plaintiff failed to prove lawful possession. The lower Appellate Court's decision was based on documentary evidence, including R.T.C. extracts (Exs. D. 2, D. 3, D. 13, and D. 14), which indicated that defendant 6 was in possession. The High Court upheld the lower Appellate Court's finding, stating it was a possible view based on the evidence presented.
2. Application of the Principle of Res Judicata:
The lower Appellate Court held that the plaintiff's suit was barred by res judicata due to a previous suit (O.S. No. 398 of 1967) for the same relief of permanent injunction against defendant 6, which had been dismissed. The High Court agreed with this view, emphasizing that the principle of res judicata applied as the plaintiff failed to establish a new basis for possession after the earlier suit's dismissal.
3. Suppression of Material Facts by the Plaintiff:
The plaintiff did not disclose the earlier suit (O.S. No. 398 of 1967) in his pleadings, which the lower Appellate Court considered a suppression of material facts. The High Court concurred, citing the principle that a party must approach the court with clean hands. The suppression of the earlier suit was deemed significant enough to warrant dismissal of the current suit, irrespective of whether the suppression occurred at an interlocutory or final stage.
Conclusion:
The High Court dismissed the appeal, confirming the lower Appellate Court's judgment and decree, and upheld the dismissal of the plaintiff's suit on the grounds of failure to prove lawful possession, application of res judicata, and suppression of material facts. No costs were awarded.
-
2007 (10) TMI 698
Issues involved: Interpretation of notification regarding exemption from payment of Central Excise duty based on mention of specific land numbers.
Summary:
The Supreme Court, in a case related to exemption from Central Excise duty, noted the discrepancy in the notification mentioning Khasra Nos. 6 & 7 instead of Khatauni Nos. 6 & 7 for the appellant's industry. The appellant contended that the notification should refer to Khatauni numbers, supported by recommendations from the State Government and SIDCUL. The Court found merit in the appellant's argument and decided to set aside the impugned judgment, remitting the matter to the High Court for fresh consideration. Additionally, the Union of India's appeal was also allowed without expressing any opinion on the merits, urging the High Court to expedite the disposal of the case within three months from the date of the order.
This judgment highlights the importance of accurate identification in legal notifications and the need for precise interpretation of terms like Khasra and Khatauni numbers in matters concerning exemption from Central Excise duty. The Court's decision to remit the case for fresh consideration underscores the significance of procedural correctness and adherence to statutory requirements in such legal disputes. The directive for expeditious disposal by the High Court reflects the judiciary's commitment to timely resolution of legal matters to ensure justice is served efficiently.
-
2007 (10) TMI 697
Issues involved: Interpretation of Rule VI of the Rules for promotion of Income Tax Inspector to Income Tax Officer based on examination marks from different years.
Summary:
The petitioner, an Income Tax Inspector, sought promotion to Income Tax Officer by clearing a departmental test with specific criteria outlined in Rule VI of the Rules. The Rule required candidates to secure minimum marks in various subjects, including Income Tax Law. The petitioner had cleared all subjects except Income Tax Law, scoring below the required marks in 2003 but meeting the criteria in 2002. Disputing the interpretation of Rule VI by the respondents, the petitioner filed a Writ Petition after his OA was dismissed by CAT. The petitioner argued that marks from 2002 should also be considered u/s Rule VI(4), but the Court upheld the respondents' interpretation, citing precedence and reluctance to interfere with long-standing interpretations as per Keshav Mills Co. Ltd v. Commissioner of Income Tax (AIR 1965 SC 1636). Consequently, the Writ Petition was dismissed.
In conclusion, the Court upheld the respondents' interpretation of Rule VI regarding promotion criteria for Income Tax Inspectors, emphasizing the importance of consistent legal interpretations over time and dismissing the petitioner's claim for promotion based on marks from different examination years.
-
2007 (10) TMI 696
Issues involved:
The judgment involves the quashing of an order passed by a Metropolitan Magistrate in a Domestic Violence Application under The Protection of Women from Domestic Violence Act, 2005. The issues include the availability of a site plan for the shared household, the right of the complainant to stay at the shared household, and the alternative remedies provided under the Act for alteration or appeal.
Availability of Site Plan and Right to Stay:
The impugned order directed that the complainant not be dispossessed from the shared household at the matrimonial house. The order specified the address of the shared household as F-304, Mansarover Garden, Ramesh Nagar, New Delhi. The complainant was residing with her parents and had requested to stay at the shared household. The Protection Officer, with the assistance of the concerned SHO, was directed to ensure compliance with the order by a specified date.
Provisions of The Protection of Women from Domestic Violence Act, 2005:
The judgment highlighted the provisions of Sections 25 and 29 of the Act. Section 25 allows for the alteration, modification, or revocation of protection orders based on changes in circumstances, upon application by the aggrieved person. Section 29 provides for an appeal to the Court of Session within thirty days from the date the order is served on the aggrieved person or respondent.
Maintainability of the Petition:
The judgment emphasized that under the Act, there are specific remedies available, such as appeal or modification of orders. It cited judicial decisions stating that when a special remedy is provided by a statute, that remedy must be availed of. As the petitioner had not utilized the alternative remedies under the Domestic Violence Act and directly approached the High Court under Article 227 of the Constitution of India and Section 482 Cr.P.C., the petition was deemed misconceived and not maintainable. The petition was dismissed with costs imposed on the petitioner.
Costs and Compliance:
The petitioner was directed to deposit the costs with the trial court within one month from the date of the order. Failure to comply would result in the trial court recovering the costs in accordance with the law. A copy of the judgment was to be sent to the trial court promptly for further action.
-
2007 (10) TMI 695
Issues Involved:
1. Confiscation of seized goods and truck u/s 111 and 115 of the Customs Act, 1962.
2. Right to redeem seized goods u/s 125 of the Customs Act.
3. Legality of auction sale of confiscated goods.
4. Maintainability of writ application post-auction sale.
Summary:
1. Confiscation of Seized Goods and Truck u/s 111 and 115 of the Customs Act, 1962:
The appellant-writ petitioner challenged the order dated 30.4.2007 dismissing his writ application for the release of seized goods. The Customs Department had apprehended a truck with battery powder suspected to be Zinc Oxide/Zinc Sulphate on 12.6.2001. The Joint Commissioner, Customs, Patna, after a preliminary enquiry, initiated proceedings and passed a final order on 15.7.2003 u/s 122 of the Customs Act, directing confiscation of the goods u/s 111(b). The appellant's subsequent appeals were dismissed by the appellate authority and the Tribunal.
2. Right to Redeem Seized Goods u/s 125 of the Customs Act:
The appellant-writ petitioner argued that he sought to implement the order dated 15.7.2003, which allowed him to redeem the seized goods on payment of a redemption fine of Rs. 75,000/- u/s 125 of the Customs Act. However, the Customs Department countered that the appellant failed to exercise this option within the prescribed one-month period, and thus, the goods were auctioned and delivered to the auction purchaser on 4.8.2005.
3. Legality of Auction Sale of Confiscated Goods:
The appellant contended that the Customs authorities should have awaited the outcome of his application before the Tribunal before auctioning the goods. The respondents argued that the writ application had become infructuous as the goods were already auctioned and delivered. The court held that once the goods were confiscated and vested in the Central Government, the appellant lost the right to claim their return even on payment of fine and penalty. The auction sale was deemed legal as it was conducted after the Tribunal dismissed the appellant's application.
4. Maintainability of Writ Application Post-Auction Sale:
The court found that the writ application was not maintainable due to the changed circumstances, as the goods were already auctioned and delivered before the filing of the writ application. The appellant did not challenge the auction sale decision nor made the auction purchaser a party to the writ application. The court emphasized that the Customs authorities need not wait indefinitely for the appellant to exercise his redemption option.
Conclusion:
The court dismissed the appeal, affirming that the confiscated goods vested in the Central Government, and the appellant had no right to claim their return post-auction. The court also noted the need for transparency in future auctions, highlighting the significant drop in the value of the seized goods from Rs. 3,50,000/- to Rs. 402/-. The appeal was dismissed with no order as to costs.
-
2007 (10) TMI 694
Issues involved:
Petition seeking quashing of proceedings under u/s 138 of Negotiable Instruments Act; Interpretation of Section 141 of the Act regarding vicarious liability in a proprietary concern.
Judgment Details:
Issue 1: Quashing of Proceedings under Section 138 of Negotiable Instruments Act
The petitioner sought relief to quash proceedings initiated against them under Section 138 of the Negotiable Instruments Act. The petitioner contended that being the second accused in a case where the first accused, who is the sole proprietrix, issued disputed cheques, the petitioner cannot be vicariously held responsible. Citing the Supreme Court decision in RAGHU LAKSHMINARAYANAN VS FINE TUBES (2007) 5 SCC 103, it was argued that a proprietary concern is not covered under Section 141 of the Act, and therefore, vicarious liability does not apply to persons other than the proprietor.
Issue 2: Interpretation of Section 141 of Negotiable Instruments Act
The respondent argued that the petitioner actively participated in the proprietary concern and managed the business, making both accused jointly liable for the dishonored cheques. However, the court noted that even though the second accused was involved in managing the business along with the first accused, who was the sole proprietrix, this alone was insufficient to implicate the second accused. The court referred to the Supreme Court's interpretation that a proprietary concern is distinct from a company or firm under Section 141 of the Act, absolving the second accused from vicarious liability.
Conclusion:
After considering the arguments and perusing the complaint and evidence, the court found that the first accused being the sole proprietrix, the second accused cannot be held vicariously liable for the offense under Section 138 of the Act. Consequently, the court quashed the proceedings against the petitioner and directed expedited trial within five months. The Criminal Original Petition was allowed, and the connected miscellaneous petition was closed.
-
2007 (10) TMI 693
Maintainability of plaint - maintainability of the application questioned on the ground that once the court is seized of an application filed by him under Order VII Rule 11 CPC - suit filed within 12 years - Suit barred by limitation - land dispute - Identification of the property - scope of applicability of the Limitation Act vis-`-vis Order VII Rule 11 of the Code of Civil Procedure - HELD THAT:- The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession.
We have noticed that the defendant, inter alia, on the plea of identification of the suit land the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under Order VII Rule 11(d) was not maintainable. The contentions raised by the learned Counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage.
Thus, the impugned judgment cannot be sustained. The same is, therefore, set aside. The appeal is allowed with costs.
-
2007 (10) TMI 692
Issues involved: Initiation of penalty proceedings u/s 271(1)(c) of the Income-tax Act, 1961 based on satisfaction of the Assessing Officer, discernibility of satisfaction from the assessment order, relevance of previous court decisions, and consideration of appeal on merits.
Initiation of Penalty Proceedings: The Assessing Officer initiated penalty proceedings u/s 271(1)(c) based on satisfaction recorded in the assessment order. A separate penalty of Rs. 9,20,100 was levied, which was later appealed by the assessee and revenue. The Commissioner of Income-tax (Appeals) allowed the appeal stating that the disallowance and addition made did not amount to concealment of income. The Income-tax Appellate Tribunal upheld the CIT(A)'s decision on merits and cited the necessity of recording satisfaction in the assessment order for initiating penalty proceedings.
Relevance of Previous Court Decisions: The Tribunal referenced the decision in CIT v. Ram Commercial Enterprises Ltd. and emphasized the requirement of recording satisfaction by the Assessing Officer in the assessment order for initiating penalty proceedings. The Supreme Court approved this decision in subsequent cases, affirming the importance of explicit satisfaction for penalty initiation.
Consideration of Appeal on Merits: The Court examined the assessment order to determine the discernibility of the Assessing Officer's satisfaction for penalty proceedings. Despite the pending consideration of a substantial question of law by a Larger Bench, the Court proceeded to assess the present case. It was concluded that the assessment order did not reflect any satisfaction for initiating penalty proceedings u/s 271(1)(c).
Dismissal of Appeal: The Court dismissed the revenue's appeal on merits, noting that the disallowance of depreciation claim was based on a bona fide belief and did not amount to concealment of income. The Tribunal's decision was upheld, and no interference was deemed necessary. Ultimately, it was held that no substantial question of law arose, and the appeal was dismissed.
-
2007 (10) TMI 691
Issues Involved:
1. Maintainability of the Company Petition under Section 397/398 of the Companies Act, 1956.
2. Locus standi of the petitioners to file the Company Petition.
3. Allegations of oppression and mismanagement.
4. Compliance with Company Law Board Regulations, 1991.
Summary:
1. Maintainability of the Company Petition:
The respondents filed Company Application No. 357 of 2007 u/s 399 of the Companies Act, 1956, seeking dismissal of C.P. No. 88/07 on grounds of non-maintainability. They argued that the petitioners did not hold the requisite number of shares to maintain a petition u/s 397/398 of the Act. The petitioners had sold their shares during 1989-1991 and were not shareholders of the Respondent No. 1 company till 2002, except for 2 shares held by petitioner No. 2. The petitioners' claim of holding 14500 shares was contradicted by their own admission in the petition that they had not been shareholders since 1993.
2. Locus Standi of the Petitioners:
The respondents contended that the petitioners lacked locus standi to file the petition as they did not hold the requisite 10% of the subscribed capital or constitute 10% of the total membership as required u/s 399 of the Act. The petitioners' shareholding had been transferred long back, and they failed to provide sufficient evidence to prove their current shareholding. The petitioners argued that they had been wrongfully not shown as shareholders and that the annual returns reflecting their shareholding transfer were under challenge.
3. Allegations of Oppression and Mismanagement:
The petitioners alleged acts of oppression and mismanagement against Patwari Exports Pvt. Ltd. and Shri Ishwar Lal Patwari Group. However, the respondents argued that the petition was filed to pressurize and arm-twist them, and that the petitioners had no substantial evidence to support their claims. The respondents also pointed out that the petitioners had not addressed the various actions/deeds of mismanagement and oppression in their reply.
4. Compliance with Company Law Board Regulations, 1991:
The respondents argued that the petitioners had not complied with the Company Law Board Regulations, 1991, which required documentary evidence in proof of eligibility and status of the petitioners. The petitioners countered that the regulations could not override the provisions of the Companies Act, 1956, and that they had the right to approach the Company Law Board against the respondents' wrongful activities.
Judgment:
The Board found the respondents' contentions tenable and concluded that the petitioners did not have the requisite qualification to maintain the petition u/s 397/398 of the Act. The petitioners failed to substantiate their claim of shareholding despite opportunities provided. The Board held that the petitioners lacked locus standi and dismissed C.P. No. 88/07 as not maintainable. The application CA No. 357/07 was allowed, and no order as to cost was made.
-
2007 (10) TMI 690
Issues involved: Condonation of delay in filing necessary petition under Section 111A of the Companies Act, 1956 before the Company Law Board.
Summary:
1. The company application was filed under Section 5 of the Limitation Act, 1963, seeking condonation of a delay of 1,884 days in approaching the Company Law Board to direct the registration of share transfers. The delay was attributed to the company returning transfer forms without justification, leading to a civil suit being filed and subsequently redirected to the Company Law Board. The delay was claimed to be non-wilful by the applicants.
2. The opposition contended lack of details in the application and deemed the delay wilful, citing the applicants' negligence and failure to adhere to stipulated timelines. It was argued that the Company Law Board should not support negligent applicants, thereby declining their rights and ending harassment to the company.
3. The main issue was whether the applicants demonstrated sufficient cause for condoning the 1,884-day delay in filing the application under Section 111A. The applicants' explanation for the delay was based on the return of transfer forms and subsequent legal advice leading to the civil court and eventually the Company Law Board.
4. The facts revealed that the company had refused to register share transfers in 2002 due to signature discrepancies. Instead of approaching the Company Law Board, the applicants filed a civil suit in 2006, causing a significant delay. The lack of reasons for the delay and the vague nature of the application led to the dismissal of the condonation request by the Vice-Chairman.
5. Consequently, the application for condonation of delay was dismissed, with no costs imposed.
-
2007 (10) TMI 689
Issues Involved:
1. Allegations of oppression and mismanagement.
2. Maintainability of petitions under Sections 397 and 398 of the Companies Act.
3. Validity and execution of arbitration awards.
4. Jurisdiction of the Company Law Board (CLB).
5. Doctrine of res judicata and finality of judicial decisions.
6. Allegations of delay and laches.
7. Petitioners' locus standi and qualification under Section 399 of the Companies Act.
8. Estoppel and waiver principles.
Detailed Analysis:
1. Allegations of Oppression and Mismanagement:
The petitioners alleged acts of oppression and mismanagement by the respondents in the affairs of the respondent companies. They sought reliefs including the restoration of shareholding, cancellation of transfers, and investigation into the affairs of the companies. The respondents argued that the petitioners were not shareholders and thus had no standing to claim oppression or mismanagement.
2. Maintainability of Petitions under Sections 397 and 398:
The respondents contended that the petitions were not maintainable as the petitioners did not satisfy the conditions precedent for invoking Sections 397 and 398. The petitioners were not shareholders in any sense of the term, and the shares in question had been transferred by court order as part of an arbitration award. The CLB found that the petitioners had no locus standi to maintain the petitions.
3. Validity and Execution of Arbitration Awards:
The arbitration awards had been confirmed by the Bombay High Court and the Supreme Court, making them final and binding. The respondents argued that the petitioners had accepted the benefits of the awards and could not challenge them. The CLB agreed, noting that the awards had attained finality and the petitioners had received the compensation awarded to them.
4. Jurisdiction of the Company Law Board:
The CLB held that it lacked jurisdiction to entertain and adjudicate the petitions under Sections 397 and 398 because the issues originated from an arbitration agreement. The CLB emphasized that the arbitration awards had been decreed and were final, and any disputes arising from them should be addressed by the competent court, not the CLB.
5. Doctrine of Res Judicata and Finality of Judicial Decisions:
The respondents argued that the petitions were barred by the doctrine of res judicata, as the issues had already been decided by the Bombay High Court and the Supreme Court. The CLB agreed, stating that the same claims could not be raised again between the same parties, and the previous judgments and orders were final and binding.
6. Allegations of Delay and Laches:
The petitions were filed in 2006, relating to matters from 1998. The respondents argued that there was considerable delay and laches, which should bar the petitions. The CLB agreed, noting that there had been an unexplained delay of more than eight years, and there was no plea for condonation of delay.
7. Petitioners' Locus Standi and Qualification under Section 399:
The CLB found that the petitioners had no locus standi as they were not shareholders in the respondent companies. The shares had been transferred by court order, and the petitioners had accepted the compensation. The CLB held that the petitioners did not meet the qualifications under Section 399 of the Companies Act to maintain the petitions.
8. Estoppel and Waiver Principles:
The respondents argued that the petitioners could not approbate and reprobate, i.e., take benefits under the awards and then challenge them. The CLB agreed, stating that the petitioners were estopped from challenging the awards after accepting the benefits. The CLB emphasized that a person acting in terms of a court order and taking benefits thereunder cannot later challenge the validity of that order.
Conclusion:
The CLB dismissed the petitions as not maintainable, citing lack of jurisdiction, the finality of arbitration awards, delay and laches, and the petitioners' lack of locus standi. All interim orders were vacated, and no costs were awarded.
-
2007 (10) TMI 688
The Gujarat High Court, in 2007, issued an order for disbursement of funds in a case where properties are yet to be sold. The OL will consider admissible claims, and disputed claims will be finalized by the Court at the time of disbursement. Both applications were disposed of accordingly.
-
2007 (10) TMI 687
Refund - stamp duty - Improper description - Admissibility of a photocopy of an improperly stamped original document as secondary evidence - eviction of the tenant from the shop - Interpretation of statues - HELD THAT:- On a plain reading of Section 48-B of Indian Stamp (Madhya Pradesh Amendment) Act, 1990, we do not find that the submission of the learned counsel for the appellant that by virtue of this provision the Collector has been authorized to impound even copy of the instrument, is correct. Under this Section where the deficiency of stamp duty is noticed from the copy of any instrument, the Collector may call for the original document for inspection, and on failure to produce the original instrument could presume that proper stamp duty was not paid on the original instrument and, thus, recover the same from the person concerned. Section 48-B does not relate to the instrument, i.e., the original document to be presented before any person who is authorized to receive the document in evidence to be impounded on inadequacy of stamp duty found. The Section uses the phraseology where the deficiency of stamp duty is noticed from a copy of any instrument . Therefore, when the deficiency of stamp duty from a copy of the instrument is noticed by the Collector, the Collector is authorised to act under this Section.
On deficiency of stamp duty being noticed from the copy of the instrument, the Collector would order production of original instrument from a person in possession or in custody of the original instrument. Production is required by the Collector for the purpose of satisfying himself whether adequate stamp duty had been paid on the original instrument or not. In the notice given to person in possession or in custody of original instrument, the Collector shall provide for time within which the original document is required to be produced before him. If, in spite of the notice, the original is not produced before the Collector, the Collector would draw a presumption that original document is not duly stamped and thereafter may proceed in the manner provided in Chapter IV.
By virtue of proviso, the step for recovery of adequate stamp duty on the original instrument on insufficiency of the stamp duty paid being noticed from the copy of the instrument, can only be taken within five years from the date of execution of such instrument. By virtue of proviso to Section 48-B, the Collector's power to adjudicate upon the adequacy of stamp duty on the original instrument on the basis of copy of the instrument is restricted to the period of five years from the date of execution of the original instrument. This Section only authorizes the Collector to recover the adequate stamp duty which has been avoided at the time of execution of the original instrument. This Section does not authorize the Collector to impound the copy of the instrument.
Thus, the appeal fails and is dismissed.
........
|
9911796707
