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2009 (10) TMI 984
Issues involved: Appeal against judgment of Jammu & Kashmir High Court regarding eviction of retired government employees from government accommodation due to security reasons and lack of alternative housing options.
Summary:
1. The appellants, retired Kashmiri Pandit government servants, were allowed to retain government accommodation in Jammu due to safety concerns after their houses in the valley were destroyed by militants.
2. Writ petitions were filed by government employees waiting for accommodation, leading to a judgment directing eviction of non-government servants from government houses and allocation based on a new classification system.
3. The appellants appealed this decision, leading to a prolonged legal process where the Supreme Court directed the State to frame a rehabilitation scheme for the appellants.
4. The State formulated a comprehensive Return and Rehabilitation Package for Kashmiri Migrants involving housing assistance, transit accommodation, cash relief continuation, and employment opportunities.
5. The State demonstrated progress in implementing the rehabilitation scheme, including identifying sites for transit accommodation and nearing completion of flats for migrants returning to the valley.
6. The Supreme Court, after reviewing the State's affidavit and hearing counsels, disposed of the appeal with the expectation that the State would continue efforts to rehabilitate the affected individuals, allowing the 31 appellants to retain their current accommodations until suitable alternatives are provided.
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2009 (10) TMI 983
Issues Involved:
1. Jurisdiction of Civil Court under Section 9 of the Code of Civil Procedure to decide adoption and Watandari rights.
2. Binding nature of the Judgment and Decree in O.S. No. 104/1953 on subsequent suits and proceedings.
3. Applicability of res judicata to subsequent proceedings.
4. Impact of the 1941 order recognizing plaintiffs as Watandars on subsequent claims by Vithu.
5. State Government's authority to direct re-examination of Watandari rights.
6. Validity of the Sub-Divisional Officer's order dated 22.11.1989 in light of previous civil court judgments and regrant orders.
Detailed Analysis:
1. Jurisdiction of Civil Court:
The Supreme Court examined whether the Bombay Hereditary Offices Act, 1874, and the Bombay Inferior Village Watan Abolition Act, 1958, exclude the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure to decide the plea of adoption and Watandari rights. It was concluded that the question of adoption, which pertains to the status and legal character of an individual, falls within the purview of Section 34 of the Specific Relief Act, 1963, and thus, a suit for declaration before a civil court is maintainable. The Collector's jurisdiction is limited to deciding hereditary interest in watan lands, not the legal status of adoption.
2. Binding Nature of Judgment and Decree in O.S. No. 104/1953:
The Court held that the judgment and decree in O.S. No. 104/1953, which concluded that Vithu was not the adopted son of the deceased Watandar, is binding on the parties in subsequent suits and proceedings. The civil court's decision on adoption, confirmed by the appellate court and the High Court, precludes re-examination by revenue authorities.
3. Applicability of Res Judicata:
The principle of res judicata, codified in Section 11 of the Code of Civil Procedure, was applied. The Court emphasized that once a matter is decided by a competent court, it cannot be reopened in subsequent litigation between the same parties. The decision in the 1953 suit, which included a specific finding on Vithu's adoption, operates as res judicata in subsequent proceedings, including those before the Sub-Divisional Officer.
4. Impact of the 1941 Order:
The 1941 order by the Deputy District Collector, recognizing the plaintiffs as Watandars, was accepted by the civil court and became final. This order, confirmed by the High Court in Regular Second Appeal No. 962 of 1958, precludes Vithu from re-agitating the matter before the State Government or other authorities.
5. State Government's Authority:
The Court held that the State Government had no authority to direct the Sub-Divisional Officer to re-examine Watandari rights, especially in light of the final and binding civil court decrees. The Watan Abolition Act, 1958, does not empower the State Government to issue such directions, and any such action is beyond the statutory framework.
6. Validity of the Sub-Divisional Officer's Order:
The Sub-Divisional Officer's order dated 22.11.1989, which recognized Vithu as Watandar despite the civil court's judgment, was invalid. The Court emphasized that the civil court's findings on adoption and Watandari rights are binding and cannot be disregarded by revenue authorities. The previous regrant order dated 03.6.1963 in favor of the appellants under Section 5(1) of the Watan Abolition Act, 1958, was final and could not be reviewed or modified by the Sub-Divisional Officer.
Conclusion:
The Supreme Court set aside the High Court's judgment, reaffirming the binding nature of the civil court's judgment on adoption and Watandari rights. The appeals were allowed, and the orders recognizing Vithu as Watandar were invalidated. The principle of res judicata was upheld, and the jurisdiction of civil courts in matters of adoption and legal status was confirmed.
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2009 (10) TMI 982
Issues Involved:
1. Nature and quality of consideration for a representation made by a detenu under Article 22(5) of the Constitution of India and Section 7(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA).
2. Validity of the order of detention passed under Section 3(1) of the KAAPA.
3. Relevance and impact of the cases cited in the detention order.
4. Proper application of mind by the sponsoring and detaining authorities.
5. Proper application of mind by the Government before passing the order of approval under Section 3(3) of the KAAPA.
6. Consideration of the detenu's representation by the Government.
Issue-Wise Detailed Analysis:
1. Nature and Quality of Consideration for Representation:
The judgment discusses the importance of the nature and quality of consideration that a representation made by a detenu must receive from the Government. It emphasizes that the detenu has a right to make a representation under Article 22(5) of the Constitution and Section 7(2) of the KAAPA, and this representation must be given real and proper consideration by the Government. The Court refers to precedents to highlight that the representation must be considered impartially and with an unbiased mind, though a detailed speaking order is not necessary.
2. Validity of the Order of Detention:
The petitioner, the wife of the detenu, challenges the order of detention passed under Section 3(1) of the KAAPA. The Court examines whether the detaining authority had valid grounds to pass the detention order and whether the detenu was rightly classified as a "known goonda" or "known rowdy." The Court acknowledges that cases 1 and 5 should not have been considered as they had already ended in acquittal or were closed, and case 5 under Section 160 IPC does not qualify the detenu as a "known goonda" or "known rowdy."
3. Relevance and Impact of the Cases Cited in the Detention Order:
The Court evaluates the relevance of the remaining three cases (cases 2 to 4) in determining whether the detenu falls within the definition of "known goonda" or "known rowdy." The Court concludes that these cases, which were pending at the time of the detention order, are sufficient to classify the detenu under the relevant sections of the KAAPA. However, the Court emphasizes that the acts alleged in these cases must pose a threat to public order, not just law and order.
4. Proper Application of Mind by Sponsoring and Detaining Authorities:
The petitioner argues that there was no proper application of mind by the sponsoring and detaining authorities. The Court agrees that the authorities erred in considering cases 1 and 5, but it holds that this error does not invalidate the detention order because the remaining three cases justify the order. The Court also examines other contentions raised by the petitioner, such as the use of the term "rioting cases" and the inconsistency between the sponsoring and detaining authorities' classification of the detenu.
5. Proper Application of Mind by the Government Before Passing the Order of Approval:
The petitioner contends that the Government did not properly apply its mind before passing the order of approval under Section 3(3) of the KAAPA. The Court considers the arguments and precedents, concluding that while the Government must consider all materials before granting approval, it is not required to pass a detailed speaking order. The Court finds that the Government's order of approval, Ext.P5, does not show a lack of proper consideration.
6. Consideration of the Detenu's Representation by the Government:
The petitioner argues that the Government did not properly consider the detenu's representation, Ext.R2(m), before passing the order of approval. The Court examines the representation and the Government's response, Ext.P8, and concludes that the Government failed to give real and proper consideration to the representation. The Court highlights that crucial grounds raised by the detenu, such as the factual inaccuracies in the detention order, were not addressed in Ext.P8.
Conclusion:
The Court allows the writ petition, finding the continued detention of the detenu invalid and unjustified due to the Government's failure to properly consider the detenu's representation. The Court orders the immediate release of the detenu unless he is required to be detained in any other case. The judgment emphasizes the need for the Government to ensure procedural compliance and proper consideration of representations to uphold the rights of individuals under preventive detention laws.
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2009 (10) TMI 981
Issues involved:
The judgment involves the quashing of a case in S.T.C. No. 486 of 2004 on the file of the Judicial Magistrate No. III, Madurai, based on the legality of presenting post-dated cheques after the seizure of a vehicle under a hypothecation agreement.
Summary:
Issue 1: Presentation of Post-Dated Cheques After Vehicle Seizure
The Petitioner availed a loan to purchase a lorry under a hypothecation agreement with the Respondent bank. The Respondent bank seized the lorry due to payment default by the Petitioner, leading to the sale of the vehicle and adjustment of the sale proceeds in the loan amount. The Petitioner argued that the post-dated cheques issued earlier cannot be used after the seizure and sale of the vehicle, as the liability had automatically varied. The Respondent contended that the remaining amount could still be realized through the post-dated cheques.
Issue 2: Legal Liability and Consideration
The Petitioner relied on a Kerala High Court decision stating that post-dated cheques lose their enforceability if the consideration fails after the seizure of the vehicle. The Court emphasized that for penal provisions under Section 138 of the Negotiable Instruments Act to apply, the debt or liability must be legally enforceable. The Respondent argued that the Kerala High Court decision was specific to hire purchase agreements, not hypothecation agreements.
Judgment:
The Court held that post-dated cheques lose their enforceability once the vehicle is seized under a hypothecation agreement. The owner must seek other legal remedies for recovery after seizure, and if the vehicle is sold, the balance amount can be adjusted with the sale proceeds. The case based on the post-dated cheques was not a valid offense under Section 138 of the Negotiable Instruments Act, leading to the quashing of the case in S.T.C. No. 486 of 2004.
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2009 (10) TMI 980
Issues involved: Petition under Section 482 Cr.P.C. to quash order dismissing application seeking permission to go abroad for official visit.
Summary:
Issue 1: Permission to go abroad for official visit
The petitioner sought permission to go abroad for an official visit to participate in a Regional Sales Meeting in the Middle East. The Court emphasized the presumption of innocence until proven guilty in criminal cases and the right of an individual to travel even when facing trial. Citing the precedent set in Naginder Singh Rana v. State of Punjab, the Court set aside the order declining permission and allowed the petitioner to travel to Dubai/Abu Dhabi for 5-6 days. The petitioner was required to furnish security of Rs. 4 lakhs with one surety to ensure his return to India by a specified date.
Conclusion:
The Court allowed the petitioner to go abroad for the official visit, subject to the conditions mentioned above, and directed him to return to India as specified. The petition was disposed of accordingly, with a copy of the order to be provided under the signatures of the Reader of the Court.
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2009 (10) TMI 979
Issues involved: Appeal against order of CIT(A) regarding estimated addition u/s 69B of the IT Act for assessment year 2004-05.
Summary:
Issue 1: Valuation of commercial complex by District Valuation Officer (DVO)
The assessee declared income including deposit given to Karnataka Power Transmission Co., Ltd. DVO valued construction higher than declared amount. Assessee objected to valuation method and rates used by DVO, highlighting discrepancies in estimation. CIT(A) restricted addition to &8377; 1.00 Lakh from &8377; 16,75,771 made by Assessing Officer. Revenue opposed, citing DVO's rates as unreasonable. AR supported CIT(A)'s decision.
Issue 2: Discrepancies in valuation report by DVO
AR pointed out defects in DVO's valuation report, including incorrect rates, overestimation of water supply and staircase, and inadequate consideration of self-supervision by assessee's husband, a civil contractor. CIT(A) found DVO's rates exaggerated and unreasonable, granting relief to assessee. Discrepancies in valuation amounts were detailed, showing significant differences between DVO's and Regd. Valuer's assessments. Previous tribunal decisions supported the use of local rates for valuation in Karnataka.
Conclusion:
The Tribunal upheld CIT(A)'s decision, dismissing the revenue's appeal. It was found that DVO's valuation was exaggerated and not based on actual rates, supporting the relief granted to the assessee. The judgment was pronounced on 16-10-2009.
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2009 (10) TMI 978
Issues Involved:
1. Maintainability of appeal under Section 378(4) of Cr.P.C.
2. Interpretation of "such an order of acquittal" in Section 378(4) Cr.P.C.
3. Distinction between appellate and revisional powers of the High Court.
Issue-Wise Detailed Analysis:
1. Maintainability of Appeal under Section 378(4) of Cr.P.C.:
The primary issue addressed is whether an appeal under Section 378(4) Cr.P.C. is maintainable from an order of acquittal passed by a Court, other than the High Court, in exercise of its appellate jurisdiction in an appeal filed under Section 374 Cr.P.C. challenging the correctness of the Judgment and Order of conviction passed by the Trial Court.
The appellant's counsel argued that Section 378(1)(b) Cr.P.C. allows for an appeal to the High Court from an order of acquittal passed by the original or appellate Court in a case instituted upon a police report. Similarly, Section 378(4) Cr.P.C. provides for an appeal to the High Court, with leave, against an order of acquittal passed in any case instituted upon complaint. The contention was that the words "such an order of acquittal" in Sub-section (4) refer to orders of acquittal passed by both original and appellate Courts, making the present appeals maintainable.
Conversely, the respondent's counsel contended that the words "from an original or appellate order of acquittal" found in Section 378(1)(b) do not appear in Sub-section (4), implying that only orders passed in the exercise of original jurisdiction are appealable under Section 378(4). This argument was supported by a Coordinate Bench's order in Crl.A. No. 142/2009, which held that appeals from orders of acquittal passed by appellate Courts are not maintainable under Section 378(4).
2. Interpretation of "Such an Order of Acquittal" in Section 378(4) Cr.P.C.:
The court examined the interpretation of "such an order of acquittal" in Sub-sections (2) and (4) of Section 378 Cr.P.C. The appellant's counsel relied on precedents, including the case of Chairman, Village Panchayat, Nagathihalli v. N. Thimmashetty Gowda (AIR 1956 Kant 62), which established that "such an order of acquittal" includes orders passed by both original and appellate Courts. This interpretation was also supported by the Gujarat High Court in Mahammadmiya Kalumiya v. Majidkhan Dildarkhan and Anr. (1972 Crl.L.J. 1409).
The court noted that the Coordinate Bench in Crl.A. No. 142/2009 did not consider the meaning of "such an order of acquittal" and did not refer to the precedent set by Chairman, Village Panchayat, Nagathihalli v. N. Thimmashetty Gowda. The court agreed with the interpretation that "such an order of acquittal" refers to orders passed in exercise of either original or appellate jurisdiction, thus making appeals under Section 378(4) Cr.P.C. maintainable against orders of acquittal passed by appellate Courts.
3. Distinction between Appellate and Revisional Powers of the High Court:
The court highlighted the distinction between appellate and revisional powers, as established by the Supreme Court in Associated Cement Co., Ltd. v. Keshavanand (ILR 1998 KAR 1857). Appellate jurisdiction allows for a complete reappraisal of evidence and reaching independent conclusions, while revisional jurisdiction is limited to checking the legality and propriety of findings without reappraising evidence.
The court emphasized that an appeal against an order of acquittal passed by an appellate Court involves divergent findings and requires reappreciation of evidence to render complete justice. Denying the complainant in a case instituted upon complaint the opportunity to appeal against an order of acquittal passed by an appellate Court would lead to discrimination, which could not be the Legislature's intention.
Conclusion:
The court concluded that the words "such an order of acquittal" in Sub-sections (2) and (4) of Section 378 Cr.P.C. refer to orders of acquittal passed in exercise of either original or appellate jurisdiction. Therefore, an appeal under Section 378(4) Cr.P.C. is maintainable against an order of acquittal passed by an appellate Court. The matter was directed to be placed before the Division Bench for a final decision on the question of maintainability. Appellants were given the option to convert their appeals into revision petitions under Section 397 Cr.P.C. if they desired immediate disposal.
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2009 (10) TMI 977
Issues Involved:
1. Maintainability of the company petition under Section 397 of the Companies Act, 1956.
2. Non-payment of dividends and delivery of bonus shares.
3. Alleged oppression and mismanagement by the applicant-company.
4. Jurisdiction of the Company Law Board versus civil courts.
Detailed Analysis:
1. Maintainability of the Company Petition:
The primary issue was whether the company petition filed under Section 397 of the Companies Act, 1956, was maintainable. The applicant argued that the petition was not maintainable because the shareholder status of the respondent/petitioner was pending adjudication in the High Court of Madras. The applicant emphasized that the respondent/petitioner failed to state in the petition that the circumstances warranted winding up the company, a necessary condition for invoking Section 397. The court referenced the decision in Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad and Maharani Lalita Rajya Lakshmi v. Indian Motor Co. (Hazaribagh) Ltd., which stressed that allegations of oppression must be substantiated with sufficient particulars and evidence.
2. Non-payment of Dividends and Delivery of Bonus Shares:
The respondent/petitioner sought payment of outstanding dividends and delivery of bonus shares. The applicant-company had not declared any dividends since 2004, arguing that non-declaration of dividends does not amount to oppression. The court upheld this view, referencing Jaladhar Chakraborty v. Power Tools and Appliances Co. Ltd., which held that non-declaration of dividends does not constitute mismanagement. Additionally, the court noted that the applicant-company had declared bonus shares in 2004, and if the respondent/petitioner was entitled to them, they would be received automatically, provided there was no dispute over the title to the shares.
3. Alleged Oppression and Mismanagement:
The respondent/petitioner alleged oppressive acts by the applicant-company, including the non-payment of dividends and withholding of bonus shares. The court noted that for a petition under Section 397 to be maintainable, it must be demonstrated that the company's affairs are conducted oppressively and that winding up the company would unfairly prejudice the petitioners. The court found that the respondent/petitioner did not adequately plead these conditions. The court cited V.S. Krishnan v. Westfort Hi-Tech Hospital Ltd., which clarified that oppression involves conduct that is harsh, burdensome, and wrong, and that the Company Law Board has wide discretionary powers under Section 402 to remedy such oppression.
4. Jurisdiction of the Company Law Board versus Civil Courts:
The applicant argued that the issues raised by the respondent/petitioner were already pending before the High Court of Madras in a civil suit (C.S. No. 454 of 2008). The court agreed, referencing Raghbir Singh v. Sikri Multiplex Cinema P. Ltd., which held that the Company Law Board should not adjudicate matters where there are disputed questions of fact already pending in civil courts. The court concluded that since the title to the shares was under dispute in the High Court, the company petition was not maintainable.
Conclusion:
The court dismissed the company petition as not maintainable, primarily due to the pending civil suit regarding the disputed shares and the failure of the respondent/petitioner to substantiate allegations of oppression with sufficient particulars and evidence. The court emphasized that non-declaration of dividends does not amount to oppression and that the jurisdiction of the Company Law Board does not extend to matters already under adjudication in civil courts.
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2009 (10) TMI 976
Issues Involved:
1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act, 1881.
2. Burden of proof and presumptions under Sections 118 and 139 of the Act.
3. Validity of a blank cheque and material alteration under Sections 5, 6, 20, and 87 of the Act.
4. Appellate Court's approach and findings.
Detailed Analysis:
Legally Enforceable Debt:
The appellant challenged the appellate court's judgment that set aside the trial court's conviction of the respondent under Section 138 of the Negotiable Instruments Act, 1881. The trial court had found the respondent guilty based on evidence that a cheque issued for Rs. 2,08,074/- was dishonored due to insufficient funds. The appellate court, however, held that the complainant failed to prove a legally enforceable debt, as no cogent evidence such as books of account or income tax returns was produced. The High Court re-examined the evidence, including invoices, debit notes, and ledger accounts, and concluded that the complainant had indeed proved the debt.
Burden of Proof and Presumptions:
The appellate court had ruled that the complainant failed to discharge the initial burden of proving a legally enforceable debt, thus the accused was not required to rebut the presumptions under Section 139 of the Act. The High Court, however, clarified that the presumption under Section 139 is mandatory but rebuttable. It emphasized that the complainant had provided sufficient evidence to prove the debt, and the accused failed to rebut the presumption effectively.
Validity of a Blank Cheque and Material Alteration:
The respondent argued that the cheque was a blank instrument and thus not a valid negotiable instrument. The High Court referred to various judgments, including those from the Kerala High Court and the Supreme Court, to explain that a blank cheque, once filled, can still be valid if it was issued with implied authority to fill in the details. The Court held that the completion of an inchoate instrument does not amount to material alteration under Section 87, provided it is done within the authority given by the drawer.
Appellate Court's Approach:
The High Court criticized the appellate court for its incorrect and perverse conclusion that the complainant failed to produce cogent proof of the debt. It noted that the appellate court's reliance on the absence of independent witnesses and certain documentary evidence was misplaced. The High Court found that the complainant had adequately proved the debt through oral and documentary evidence, and the accused's defense was not credible.
Conclusion:
The High Court concluded that the complainant had successfully proved the existence of a legally enforceable debt and that the cheque was issued for its discharge. The appellate court's judgment was set aside, and the respondent was convicted under Section 138 of the Act. Considering the respondent's circumstances, the punishment was modified to a fine of Rs. 4,15,000/-, with a provision for simple imprisonment in case of default. The fine included a compensation of Rs. 4,00,000/- to be paid to the complainant under Section 357 of the Criminal Procedure Code.
This comprehensive analysis ensures that all relevant legal issues and judgments are covered, maintaining the original legal terminology and significant phrases from the judgment.
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2009 (10) TMI 975
Issues involved: Application u/s 482 of Cr.P.C. to quash charge-sheet u/s 3/7 of E.C. Act and set aside order of Judicial Magistrate-III.
Summary:
Issue 1: Validity of Cognizance Order
The applicant filed an application u/s 482 of Cr.P.C. to quash the charge-sheet u/s 3/7 of E.C. Act and set aside the order of the Judicial Magistrate-III. The impugned order of taking cognizance against the applicant was challenged on the grounds of being prepared on a printed proforma by filling up blanks, without the magistrate applying judicial mind to the case details. The Court found the order to be illegal and invalid due to lack of judicial application in its preparation.
Issue 2: Merits of the Case
The applicant's counsel argued that the domestic gas cylinders found at the Dhaba were not being used for commercial purposes as alleged, as no regulator was found, and the cylinders belonged to another individual. It was contended that no offence was made out against the applicant based on these facts.
Issue 3: Judicial Order Preparation
The Court observed that the impugned order was prepared by filling up blanks on a printed proforma, indicating a lack of judicial application. Even if the blanks were filled by the magistrate, the order was deemed illegal as judicial orders, including those taking cognizance, cannot be passed in a mechanical manner. The Court directed the matter to be sent back for a fresh order after proper judicial consideration.
Conclusion:
The application u/s 482 was allowed, and the impugned order was set aside. The magistrate was directed to pass a fresh order on the charge-sheet. Additionally, a circular was to be issued to prohibit the use of printed proformas in passing judicial orders, and the concerned magistrate was to receive a copy of the order for future guidance. Blank printed proformas were to be seized and destroyed by the District Judge Saharanpur.
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2009 (10) TMI 974
Issues Involved:
1. Quashing of Criminal Case No. 1903 of 1996.
2. Allegations of bigamy against the petitioner.
3. Abuse of process of law by the complainant.
4. Maintainability of the petition under Article 227 of the Constitution of India and Section 482 of Cr.P.C.
5. Previous acquittals of the petitioner in related criminal cases.
6. Impact of the pending criminal case on the petitioner's employment.
Issue-wise Detailed Analysis:
1. Quashing of Criminal Case No. 1903 of 1996:
The petitioner sought to quash the proceedings of Criminal Case No. 1903 of 1996 under Article 227 of the Constitution of India. The Court noted that the petitioner had previously approached the Court under Section 482 of Cr.P.C., but withdrew the application. The Court allowed the petition considering the abuse of process of law and to secure the ends of justice, given the lack of progress in the case and the repetitive nature of the complaints filed by the respondent.
2. Allegations of Bigamy Against the Petitioner:
The complainant alleged that the petitioner remarried while their marriage was still subsisting, constituting bigamy under Section 494 of IPC. The Court found no evidence of the marriage being "solemnized" with proper ceremonies. Citing the Supreme Court's decisions in *Bhaurao Shankar Lokhande* and *Kanwal Ram*, the Court held that mere admission of marriage by the accused is not sufficient to prove bigamy.
3. Abuse of Process of Law by the Complainant:
The Court observed that the complainant had a history of filing multiple complaints against the petitioner, including Criminal Case No. 850 of 1991 and Criminal Case No. 1310 of 1993, in which the petitioner was acquitted. The Court noted that the complainant's actions amounted to harassment and abuse of the legal process.
4. Maintainability of the Petition:
The respondent argued that the petition was not maintainable as the petitioner had previously withdrawn a similar application. However, the Court cited the Supreme Court's decision in *Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh and Ors.*, which allows for subsequent applications if circumstances have changed. The Court found that the lack of progress in the criminal case justified the maintainability of the petition.
5. Previous Acquittals of the Petitioner in Related Criminal Cases:
The petitioner had been acquitted in previous criminal cases filed by the complainant, including Criminal Case No. 850 of 1991 and Criminal Case No. 1310 of 1993. The Court took these acquittals into account, noting that the allegations in the current case were similar to those in the previous cases.
6. Impact of the Pending Criminal Case on the Petitioner's Employment:
The petitioner, a State Government employee, faced difficulties in his employment due to the pending criminal case. The complainant had also filed an application with the State Government for action against the petitioner, which was stayed by the Court. The Court considered this impact while deciding to quash the proceedings.
Conclusion:
The Court allowed the petition, quashing Criminal Case No. 1903 of 1996 and all orders passed therein. The decision was based on the abuse of legal process by the complainant, lack of evidence for the bigamy allegation, and the petitioner's previous acquittals. The Court emphasized the need to prevent the abuse of the legal process and secure the ends of justice.
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2009 (10) TMI 973
Challenged the Order Of HC - transfer of publication and printing rights and machineries as also to create a lease in the buildings owned by the Trust - Interested persons seeking removal of trustees, scheme for management of the Trust, etc - M/s Karnataka Patrika (P) Ltd. (KPP) entered into an agreement with M/s Jaya Karnataka News and Printers (P) Ltd., (“JKNP”) for transfer of all its rights, interest and liabilities - loan transaction between JKNP and the respondent Bank -
(i) Whether the deceased surety and his legal representatives are liable to repay the disputed loan amount?
(ii) Whether the conduct of parties amounts to novation of the contract between the parties?
(iii) Whether the Lokashikshana Trust alone is responsible to repay the disputed loan amount being the beneficiary of the same?
(iv) Whether LST having benefited from the loan transaction disputed herein can be estopped from denying its liability?
HELD THAT:- If we acknowledge the fact that banks might be in a dominant position, there was absolutely no evidence to show that the Bank had in fact exercised its dominant power to force the surety into entering the contract that he ultimately did. If the appellant had been interested in insisting upon this matter then the least he could have done was to have entered the witness box and facilitated a method of clearing the air about it. Nor was there any explanation adduced at a later stage explaining the reason for the surety not entering evidence on his behalf. In the absence of any conclusive evidence to point to the entering of dates at a later stage, we cannot find any difficulty in rejecting the aforesaid contentions of the appellants.
Thus, the appellant guarantor cannot be held liable for the loan. But the learned counsel for the appellants had failed to produce any evidence on behalf of the appellant to satisfy the Court in support of his argument. Instead they contended that the Bank was in possession of such documents and was suppressing it. It is highly unimaginable that when parties are entering into contracts for the purpose of seriously conducting some businesses, that there would not be multiple copies of the executed agreement or at least one copy with either of the appellants. Thus, this contention of the appellants does not inspire any confidence. We, therefore, find no difficulty in rejecting the same.
In the present facts and circumstances, we, therefore, do not find any difficulty in affirming the concurrent findings of the High Court and of the trial court on the point that the agreement executed for the purpose of a continuing liability despite the variation of terms of the contract and in the absence of a specific written document by Basavaraj (since deceased) revoking the guarantee, the guarantee stands and the legal representatives of the deceased are liable to repay the loan.
As rightly held by the High Court at present, there is no need to look into the question as to which of the machineries were specifically hypothecated to the Bank. But the facts in this case are enough to show that a charge was in fact created on the said machinery by JKNP and which had reverted back to the original owner LST in the chain of circumstances. Nevertheless, there is enough evidence on record to show that there was indeed a hypothecation of the said machinery. Hence, we find no difficulty in rejecting the argument of the appellant. Accordingly, we affirm the decision of the High Court as the plea of JKNP regarding the novation of a contract was found to be unsustainable and, therefore, the liability of LST to pay the amount involved in the suit would not stand either except to the extent that LST holds any of the hypothecated machineries.
The learned counsel for the appellant submitted that JKNP was deprived of the possession, management and control of the suit property by an interim order of the court passed in OS and never regained the same. It was further contended that the loan obtained by the appellant was for and on behalf of the Trust and, hence, JKNP cannot be held liable for repayment of the same.
There is no doubt that LST being the beneficiary of the loan is liable to repay the loan amount u/s 70 of the Act; but the question here is whether it is alone responsible to pay the same. The courts below held that LST was liable for payment of the suit claim, but the learned counsel for the respondent claimed that once takeover of the Trust property was declared invalid, any liabilities incurred in the intervening period of time including actions by the State would also be unenforceable against it. However, the High Court failed to consider that LST was liable to repay the loan on the principle of Section 70 of the Contract Act inasmuch as it was LST who had been benefited from the loan, which JKNP had secured.
We, therefore, agree with the views expressed by the trial court and disapprove the finding of the High Court on this count. The Board of Trustees was competent to take any loan, which would be considered to be loan taken by the Trust. In such a case, any loan taken by the Administrator appointed by the State shall also be deemed as loan taken by the Trust and, hence, the Trust would be liable to repay the loan.
Bank has granted the loan for proper functioning of the Trust and on hypothecation of the properties of the Trust itself. From the very beginning, all the transactions which had been entered into had clearly been for the sake of the running of the publications of Samyukta Karnataka and other periodicals like Kasturi. In fact, first KPP and then JKNP, both private limited companies were formed for the sole purpose of the management of the running of the business of LST. These companies had been formed because LST was running losses and was unable to properly manage its affairs. Even the appointment of Receivers and the subsequent transactions entered into by the Administrators appointed under the LST Act had been for the purpose of furthering the business concerns of LST itself.
Thus, the appeal is allowed and the judgment of the High Court is set aside and that of the trial court is restored. There will be no order as to costs.
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2009 (10) TMI 972
Issues Involved:
1. Breach of Undertakings
2. Revival of Petition and Contempt Proceedings
3. Modification of Orders and Undertakings
4. Quantum of Punishment
Summary:
1. Breach of Undertakings:
On 09.01.2009, a notice to show cause why contempt proceedings be not initiated against Sh. S.P. Gupta, Principal Officer and Vice President of STB Enterprises Ltd., was issued for breach of undertakings given to this court. The respondent company had initially undertaken to pay an amount of US $125,570 as per a schedule mentioned in an affidavit dated 29/30.8.2006. This undertaking was accepted by the court on 6.9.2006. However, the respondent defaulted on this commitment.
2. Revival of Petition and Contempt Proceedings:
Due to the default, the petitioner sought revival of the petition through C.A. 522/2007. During the pendency of this application, the respondent was granted time to propose immediate payment of the outstanding dues. On 11.12.2007, the respondent undertook to pay 25% of the total outstanding amount by 25.12.2007, failing which they would be liable for contempt. This undertaking was also breached. Consequently, on 9.1.2008, the court revived the petition for winding up and issued a show cause notice of contempt to Sh. S.P. Gupta.
3. Modification of Orders and Undertakings:
The respondent contended that the order of 11.12.2007 superseded the earlier commitment of 6.9.2006. However, the court noted that even the undertaking of 11.12.2007 was breached. The company was directed to be wound up by a judgment delivered on 16.6.2008. The court observed that the respondent had failed to adhere to the payment schedule and had only paid a fraction of the outstanding amount. The appellate court, on 2.7.2008, granted the respondent a final opportunity to pay the outstanding amount, noting the pending contempt proceedings.
4. Quantum of Punishment:
The court emphasized that the power to punish for contempt is used sparingly and only in clear-cut cases. Despite multiple opportunities, the respondent failed to comply with the undertakings. The court held that granting further opportunities to pay did not absolve the respondent from the consequences of previous violations. The respondent was found guilty of contempt and was ordered to pay a fine of Rs. 22,000, to be deposited in the common pool fund of the official liquidator within two weeks. The matter was disposed of with this order.
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2009 (10) TMI 971
Issues Involved:
1. Maintainability of writ petitions against orders appointing arbitrators.
2. Validity of appointment of substitute arbitrators under Section 15(2) of the Arbitration and Conciliation Act, 1996.
3. Interpretation of arbitration clauses in agreements.
4. Judicial versus administrative nature of the Chief Justice's power under Section 11(6) of the Act.
Detailed Analysis:
1. Maintainability of Writ Petitions:
The appellants challenged the Division Bench of the Bombay High Court's orders, which relied on the Supreme Court's judgments in Konkan Railway Corporation Ltd. v. Mehul Construction Company and Konkan Railway Corporation Ltd. v. Rani Construction Pvt. Ltd., holding that writ petitions against orders appointing arbitrators were not maintainable. The Supreme Court overruled these precedents in S.B.P. & Company v. Patel Engineering Ltd., declaring that the Chief Justice's power under Section 11(6) of the Arbitration and Conciliation Act, 1996, is judicial, not administrative. Consequently, orders passed by the Chief Justice or designated Judge are appealable under Article 136 of the Constitution.
2. Validity of Appointment of Substitute Arbitrators:
The primary issue was whether the appointment of Shri S.L. Jain as a substitute arbitrator by respondent No. 1, following the refusal of Shri S.N. Huddar to act, was legally valid. The Supreme Court analyzed Section 15(2) of the Act, which allows for the appointment of a substitute arbitrator according to the rules applicable to the original appointment. The Court emphasized that the term "rules" includes the terms of the agreement between the parties. Since the agreements did not explicitly allow for the appointment of a substitute arbitrator, the appointment of Shri S.L. Jain was deemed invalid. Consequently, the appointment of Shri Justice M.N. Chandurkar as the third arbitrator by the designated Judge was also invalidated.
3. Interpretation of Arbitration Clauses:
Clause 19 of the piece work agreement specified that if an arbitrator appointed by either party refuses to act, the arbitrator appointed by the other party would act as the Sole Arbitrator. The Supreme Court held that the refusal of an arbitrator to act does not equate to withdrawal under Section 15(2) of the Act. Therefore, the appointment of a substitute arbitrator was not permissible under the agreement, and respondent No. 2, appointed by the appellants, became the Sole Arbitrator.
4. Judicial versus Administrative Nature of the Chief Justice's Power:
The Supreme Court reaffirmed that the power exercised by the Chief Justice or the designated Judge under Section 11(6) of the Act is judicial, not administrative. This was a significant departure from the earlier view that such power was administrative, as held in the overruled judgments of Konkan Railway Corporation Ltd. cases. The Court clarified that orders passed under Section 11(6) are subject to appeal under Article 136 of the Constitution, thereby providing a judicial remedy to aggrieved parties.
Conclusion:
The Supreme Court allowed the appeals, setting aside the orders of the designated Judge of the High Court appointing Shri Justice M.N. Chandurkar as the third arbitrator. It directed respondent No. 2 to proceed as the Sole Arbitrator and pass an appropriate award within three months. The judgment underscored the necessity of adhering to the terms of the arbitration agreement and clarified the judicial nature of the Chief Justice's power under Section 11(6) of the Act.
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2009 (10) TMI 970
Issues Involved:
1. Whether the insistence of the appellants to get the clearance of the Endowment department of the State of Andhra Pradesh at Hyderabad was the condition to be incorporated in the agreement itself for the purpose of a decree for specific performance of the contract for sale?
2. Whether in the facts and circumstances of the present case the appellant could be found to be not ready and willing to perform their part of the contract?
3. Whether in the facts and circumstances of the present case, the High Court was in error in holding that time was the essence of the contract for sale?
4. Whether in the facts and circumstances of the present case, the respondents are entitled to forfeit the advance amount paid by the appellants-purchasers?
Summary:
Issue 1:
The appellants argued that they were entitled to seek clarifications regarding the procurement of clearance from the Endowment Department, citing sub-sections (b) and (c) of Section 55(1) of the Transfer of Property Act, 1882. However, the court held that the contract did not include a clause requiring such clearance for specific performance. The court concluded that there was no obligation on the part of the respondents to obtain clearance from the Endowment Department, as the laws of West Bengal, where the trust was registered, did not require such permission.
Issue 2:
The court examined whether the appellants were ready and willing to perform their part of the contract. It was found that the appellants imposed additional conditions and sought clarifications that were not part of the original contract. The trial court and the High Court both concluded that the appellants were not ready and willing to perform their obligations under the contract. The Supreme Court affirmed this finding, noting that the appellants' demands were unjustified and unreasonable.
Issue 3:
The appellants contended that time was not the essence of the contract despite a specific clause stating otherwise. The court referred to clauses 3 and 10 of the agreement, which explicitly mentioned that time was of the essence. The court held that the intention of the parties was clear from the contract, and time was indeed the essence of the contract. The court rejected the appellants' reliance on the case of Swarnam Ramachandram, as the facts of that case were different.
Issue 4:
The court did not address the issue of forfeiture of the advance amount, as no appeal was filed by the respondents against the order regarding forfeiture. The court affirmed the judgment of the High Court concerning the suit for specific performance of the contract for sale.
Conclusion:
The appeal was allowed to the extent indicated, with no order as to costs. The Supreme Court affirmed the High Court's judgment regarding the specific performance of the contract for sale and upheld the findings that the appellants were not ready and willing to perform their part of the contract and that time was the essence of the contract.
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2009 (10) TMI 969
Issues Involved:
1. Whether LIC Housing Finance Limited (LICHFL) is a Public Authority under Section 2(h) of the Right to Information (RTI) Act, 2005.
2. Whether LIC Mutual Fund Asset Management Company Limited (LIC MFAM) is a Public Authority under Section 2(h) of the RTI Act, 2005.
3. Whether GIC Housing Finance Limited (GICHFL) is a Public Authority under Section 2(h) of the RTI Act, 2005.
Detailed Analysis:
1. LIC Housing Finance Limited (LICHFL) as a Public Authority:
The complainants argued that LICHFL is a Public Authority under Section 2(h) of the RTI Act because it is substantially financed by the Life Insurance Corporation (LIC) of India. They pointed out that LICHFL was promoted by LIC, and LIC holds a significant shareholding (40.497%) in LICHFL. Additionally, other government insurance companies also hold shares, bringing the total public sector shareholding to 45.918%. The complainants emphasized that LICHFL uses a logo similar to LIC's and shares the same Chairman and Managing Director with LIC.
LICHFL countered that it is not a Public Authority as defined by the RTI Act because LIC's shareholding is less than 51%, and thus, LIC does not have ownership or control over LICHFL. They argued that substantial financing should mean more than 50% shareholding, which is not the case here.
The Commission noted that while LIC does not own more than 50% of LICHFL, the combined shareholding of LIC and other public sector entities constitutes substantial financing. The Commission also referred to the Madras High Court's decision in Tamilnadu Road Development Company Ltd. vs. Tamilnadu Information Commission, which emphasized a liberal interpretation of "Public Authority" to include entities substantially financed by the government. Based on these considerations, the Commission concluded that LICHFL is a Public Authority under the RTI Act.
2. LIC Mutual Fund Asset Management Company Limited (LIC MFAM) as a Public Authority:
The complainants did not provide specific arguments regarding LIC MFAM. However, the Commission examined the relationship between LIC and LIC MFAM. LIC MFAM was established by LIC, which is a Public Authority under the RTI Act. LIC provided the initial corpus and financial assistance to LIC MFAM, and LIC has the authority to appoint and change the Trustees of LIC MFAM.
The respondents argued that LIC MFAM is a private company and not substantially financed by the government. They contended that LIC's investment in LIC MFAM does not constitute substantial financing.
The Commission found that LIC MFAM is substantially financed and controlled by LIC, which is a Public Authority. The Commission emphasized that funding and control by LIC, an entity established by the government, constitutes indirect financing and control by the appropriate government. Therefore, the Commission concluded that LIC MFAM is a Public Authority under the RTI Act.
3. GIC Housing Finance Limited (GICHFL) as a Public Authority:
The complainants argued that GICHFL is a Public Authority because it is substantially financed by public sector insurance companies. They pointed out that the aggregate shareholding of public sector entities in GICHFL is 47.68%.
GICHFL countered that it is not a Public Authority as defined by the RTI Act. They argued that the shareholding of public sector entities does not constitute substantial financing and that GICHFL operates independently without government control.
The Commission noted that the combined shareholding of public sector entities in GICHFL is substantial and that these entities exercise control over GICHFL. The Commission referred to the Madras High Court's decision in Tamilnadu Road Development Company Ltd. vs. Tamilnadu Information Commission, which emphasized a liberal interpretation of "Public Authority." Based on these considerations, the Commission concluded that GICHFL is a Public Authority under the RTI Act.
Decision:
The Commission decided that LIC Housing Finance Limited, LIC Mutual Fund Asset Management Company Limited, and GIC Housing Finance Limited are Public Authorities under the RTI Act. The respondents are directed to provide the requested information to the applicants within three weeks from the date of receipt of the decision notice. The decision was announced on October 28, 2009.
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2009 (10) TMI 968
Issues Involved:
1. Jurisdiction of BIFR and AAIFR over the respondent company.
2. Legitimacy of the respondent company's deregistration from BIFR.
3. Petitioner's locus standi and rights affected by the impugned order.
4. Delay and concealment in filing the petition.
Summary:
1. Jurisdiction of BIFR and AAIFR:
The petitioner challenged the impugned order dated 03.03.2008 passed by AAIFR, which held that respondent No. 2 is no longer a sick industrial company u/s 3(1)(o) of SICA, as its net worth had turned positive. Consequently, BIFR and AAIFR ceased to have jurisdiction over the company.
2. Legitimacy of Deregistration:
Respondent No. 2, Dunlop India Ltd, was declared a sick industrial company on 22.06.1998. BIFR had directed the submission of a Draft Rehabilitation Scheme. Respondent No. 2 sought permission to issue equity shares for rehabilitation, which BIFR permitted. The petitioner and SEBI challenged this order, but AAIFR dismissed the appeal, citing the Madras High Court's judgment that the company's net worth had turned positive, thus ceasing BIFR's jurisdiction.
3. Petitioner's Locus Standi and Rights Affected:
The petitioner argued that the company showed profits by selling assets and should not have been deregistered. The petitioner contended that it was prevented from recovering dues due to the company's sick status and that the sale of assets to sister concerns affected its rights. However, the court noted that the petitioner, a secured creditor, had sufficient security in the form of a mortgaged property. The court found no merit in the petitioner's claims as the company's revival did not prejudice the petitioner's rights.
4. Delay and Concealment:
The court observed a delay in filing the petition and noted that the petitioner had concealed the fact of filing recovery proceedings before the Debts Recovery Tribunal, Calcutta. Despite these issues, the court did not dismiss the petition solely on these grounds but found no merits in the petition overall.
Conclusion:
The court dismissed the petition, finding no merit in the contentions raised by the petitioner and noting that the petitioner's rights were not adversely affected by the impugned order.
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2009 (10) TMI 967
The Supreme Court granted leave in the case with no stay and allowed the petitioner to mention after four weeks. The citation is 2009 (10) TMI 967 - SC. Hon'ble Mr. Justice S.H. Kapadia and Hon'ble Mr. Justice Aftab Alam were presiding. Key lawyers included Mr. Soli J. Sorabjee for the petitioner and Mr. Gulam M. Vahanvati for the respondent.
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2009 (10) TMI 966
Issues involved:
The issue involves the treatment of an amount received by the assessee pursuant to a non-competition agreement as either a capital receipt or a revenue receipt.
Summary:
Issue 1: Treatment of amount received under non-competition agreement
The appeal by the Revenue was filed u/s 260-A of the Income Tax Act, 1961, challenging the order of the Income Tax Appellate Tribunal. The question was whether the amount of Rs. 50,00,000 received by the assessee under a non-competition agreement with Ranbaxy Lab. Ltd. should be considered a capital or revenue receipt. The Assessing Officer initially treated it as a capital receipt, but the Appellate Authority accepted the assessee's contention that it was a capital receipt. The Revenue appealed to the Tribunal, which dismissed the appeal. The High Court, referring to a previous decision, held that the amount received under the non-competition agreement should be treated as a revenue receipt, overturning the Tribunal's decision and restoring the Assessing Officer's order.
The High Court allowed the appeal, setting aside the Tribunal's order and restoring the Assessing Officer's order regarding the treatment of the amount received under the non-competition agreement.
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2009 (10) TMI 965
Dishonor of Cheque - complaint filed u/s 138/142 of NI Act - cheques issued for the discharge of a liability of a debt arising out of the agreement - whether the petitioner issued the cheque in question towards the discharge of legally enforceable liability or debt which is an essential ingredient for invoking section 138 of the Negotiable Instrument Act, 1881? - time barred debt or not - HELD THAT:- The facts as detailed in the complaint show that the agreement between the parties was dated 14.6.2000. Pursuant to this agreement, the complainant had paid ₹ 30 lakhs to the accused which the accused had agreed to repay as the agreement had terminated. On 26.1.2005 i.e. four and half years after the termination of this agreement, the accused and his brother acknowledged to pay the balance amount in a short time. In this case this acknowledgment to pay the balance amount was in terms of the settlement dated 26.1.2005 i.e. much after the statutory period of three years; it also does not speak of the acknowledgement being in writing. It was thus not a valid acknowledgment. Cheques issued on 25.3.2005 and 30.4.2005 were clearly outside the period of limitation.
In Vijay Polymers Pvt. Ltd. & Anr.[2009 (4) TMI 1035 - DELHI HIGH COURT], relying upon the judgment of Hon’ble Supreme Court in Sasseriyil Joseph [2000 (9) TMI 1081 - KERALA HIGH COURT] a coordinate bench of this court had held that cheques issued on a time barred debt would not fall within the definition of ‘legally enforceable debt’ which is the essential requirement for a complaint u/s 138 of NI Act; the extended meaning of debt or liability has been explained in the Explanation to the Section which means a legally enforceable debt or liability. The existence of a legally recoverable debt is also not a matter of presumption as has been held by the Supreme Court in Krishna Janardhan Bhat [2008 (1) TMI 827 - SUPREME COURT].
The two cheques which are the subject matter of this complaint were for the discharge of a liability of a debt arising out of the agreement dated 14.6.2000 which debt had become time barred. This debt was not a legally enforceable debt within the meaning of Section 138 Explanation of the NI Act. Complaint and all proceedings emanating therefrom are accordingly quashed.
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