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Showing 21 to 40 of 1328 Records
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2014 (4) TMI 1313
Admission of company petition to hearing - direction for issuance for publication of the advertisement of the said petition in the ‘Statesman’ (English Edition) and ‘Jansatta’ (Hindi Edition) for 14.07.2014 - HELD THAT:- The Respondent on 10.05.2012 sent a notice under Sections 433 and 434 of the Companies Act, 1956 to the Appellant demanding a sum of Rs. 13,09,32,188.73. The Appellant on 29.05.2012 replied to the notice dated 10.05.2012 seeking more time from the Respondent to clear the outstanding and expressing its willingness to make payment of the balance agreed amount in terms of the compromise decree dated 15.12.2011, if the Respondent extends the time till March, 2015 and waives off the future interest.
The Appellant is liable to pay the balance amount in terms of the settlement arrived at between the parties before the Debt Recovery Tribunal. Presumably for this reason, no reply to the petition was filed by the Appellant despite ample opportunity being granted for the aforesaid purpose. The averments made in the petition are thus unrebutted and unchallenged.
There are no infirmity in the impugned order. The order admitting the petition and issuing citation, therefore, calls for no interference - appeal dismissed.
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2014 (4) TMI 1312
Maintainability of suit for recovery of unpaid salary under Order 37 CPC - application for leave to defend - territorial jurisdiction of the court - HELD THAT:- It cannot be lost sight of that there is really no denial or dispute raised by the defendant to the claim of the plaintiff for recovery of arrears of his salary. There is thus really no dispute for adjudication by arbitration.
There are no reason to deny to the plaintiff in this suit the relief of recovery of money which admittedly is due to the plaintiff and the chances of recovery whereof, even if a decree were to be passed in favour of the plaintiff, are remote and to compel the plaintiff to spend more monies in invoking the arbitration clause when there is really nothing for arbitration. Without thus intending this to be precedent, in the facts and circumstances of the present case, the argument of the defendant also rejected.
The application for leave to defend does not disclose any ground in so far as the claim for recovery of arrears of salary is concerned.
The application is accordingly dismissed.
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2014 (4) TMI 1311
Judicial Propriety and Bench Composition - nature of the proceedings before the BIFR - Whether the order passed by the BIFR suffers from the vice of “hearing by one, decision by another”?
What is the nature of the proceedings before the BIFR? In particular, do they require personal hearing to be given to the parties? - HELD THAT:- Section 18(3) empowers the BIFR, once the OA submits the scheme, to examine it and make necessary modifications thereof; thereafter a copy of the scheme, as modified, shall be sent to the sick company and the OA. If there is provision in the scheme for any amalgamation, the scheme shall be sent to the company involved in the amalgamation. Once this process is completed, the BIFR shall publish the scheme, which is referred to as “the draft scheme”, in brief, in newspapers “for suggestions and objections, if any, within such period as the Board may specify”. If any suggestions or objections are received, the BIFR may, under section 18(3)(b) make such modifications to the draft scheme as it considers necessary in the light of the suggestions and objections. Objections or suggestions may also be received from any company involved in the amalgamation (if any), any shareholder or any creditor or employees of the company. Section 18(4) empowers the BIFR to sanction the scheme and specify the date on which it shall come into force.
These provisions do not per se contemplate any hearing, as contended on behalf of TSL; however, such a requirement is in our opinion implicit in the provisions of clause (b) of sub-section (3) of section 18 for it is difficult to see how the objections and suggestions can be taken into consideration and the draft scheme be modified in their light unless those who have raised the objections or made suggestions are heard. When there is a requirement to consider the suggestions and objections to the draft scheme, we believe that there is a duty to act judicially.
Was the hearing before the BIFR complete at any time before 24.11.2009? - HELD THAT:- The Bench which heard the matter from 24.11.2009 also heard it on merits and the reason why we say so is, as pointed out earlier, that not only this Bench had the benefit of the earlier proceedings, but the Bench also applied its mind to the record and issued further directions to the OA as well as the parties. If the contention taken on behalf of the petitioners is accepted, the result would be that the hearings before the Courts and the tribunals would ever remain inconclusive; with every change in the constitution of the Bench, the entire matter will have to be reargued from the inception. This would clog the judicial and quasi- judicial machinery and matters will get stuck without being disposed of.
Can it be said that the Bench consisting of the Chairman and V.K. Malhotra, Member did not have the benefit of the earlier proceedings and the arguments/ submissions made therein? Could they not have proceeded on the basis of the record of the earlier proceedings without breaching the rules of natural justice? - HELD THAT:- It is only because the proceedings had not reached the stage of final arguments and were still at the stage of exchange of the pleadings, written submissions, clarifications, written objections, etc. that even the petitioners believed that the proceedings had not reached such a crucial stage that a change in the constitution of the Bench would have put them to prejudice. The later Bench consisting of the Chairman and Mr. Malhotra continued the proceedings and it was before this Bench that considerable progress was made not only in the completion of the exchange of papers, written submissions, written objections, etc. but also in the matter of oral arguments and this Bench also issued directions to the parties to react to the supplementary report filed by the OA and once the reaction of the parties was brought on record in writing, directed the OA to submit its reply, which completed the proceedings. All this was done from 24.11.2009 to 07.12.2009 and on 09.12.2009 the orders were pronounced by the BIFR. Thus there was no breach of the rules of natural justice.
Do the provisions of the Code of Civil Procedure apply to the proceedings before the BIFR? - HELD THAT:- The provisions of the SICA do not specifically provide for a situation where a particular Bench, after recording evidence or a memorandum is unable to continue with the proceedings for some reason or the other. In such a case, having regard to Regulation 12(2), the provisions of Order XVIII, Rule 15 prima facie seem to apply. In any case we are unable to demur to the proposition that the principles behind the provisions of the CPC can be properly invoked in the absence of any specific provision in the SICA to cover the situation. The argument of Mr. Rajiv Nayar, however, was that this can be permitted only in the case of death or transfer of the Members of the BIFR and not otherwise. But if it is the prerogative of the Chairman to constitute the Benches and such prerogative was not questioned by the petitioners, there is no reason why the principle behind Order XVIII, Rule 15 of the CPC should not be invoked and applied.
Are the petitioners estopped from raising the objection before the AIFR or this court? - Did they acquiesce in the proceedings, thus disabling themselves from raising the objection at any time later? - HELD THAT:- In a technical sense it cannot be said that the petitioners consciously waived their right to object to the proceedings being continued before another Bench or acquiesced in the same. The second possibility is that the petitioners themselves were aware that there was no conclusion of the hearing on 12.11.2009 and therefore there is no question of any waiver of their right to claim that the same Bench should continue the proceedings or any acquiescence. This is the correct position. It is for this reason that we say that there can be no question of any waiver or acquiescence on the part of the petitioners.
The preliminary question raised by the petitioners in the writ petition to the effect that the proceedings before the BIFR offends the fundamental principle of natural justice that the one who hears, must decide, is rejected - writ petitions would, therefore, have to be heard on merits - they be listed before the roster Bench on 05.05.2014.
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2014 (4) TMI 1310
Scope of cross-examination - Requirement of examination in chief - Admissibility of portions of an affidavit in lieu of examination-in-chief - HELD THAT:- In the present case, a very large portion of the present affidavit is precisely of this impermissible nature. It is argumentative. It contain submissions. It contains traverses in the nature of pleadings of statements made in the written statement. None of this can be permitted to find place in an affidavit in lieu of examination in chief. Mr. Nevatia will have the the widest latitude in arguments. There, pointing to the pleadings and evidence, both documentary and oral, he may invite the Court to draw such conclusions or arrive at such findings as are in his submission appropriate. But that does not mean that his evidence affidavit can be more than the law permits.
The so-called ‘evidence affidavits’ are nothing but verbatim reproductions of pleadings, replete with submissions and arguments (which should have no place in pleadings either), and very often even entire prayers. Now if this matter is not kept out of the scope of a cross-examination, the consequences are unimaginable. A cross-examination would sprawl over several hundred pages and several thousand questions. This does happen, and it happens repeatedly. I do not read Ameer Trading or any of the decisions cited to suggest that material that is wholly inadmissible and not permitted by the Evidence Act should be allowed to enter the record merely because CPC Order Rule 4 requires examination-in-chief to be on affidavit.
By limiting the ambit of the evidence affidavit, Mr. Nevatia’s arguments are not restricted at the final hearing as to conclusions that he may invite the Court to draw based on the material on record. Indeed, many of the statements made in the affidavit ought more properly to be taken during final arguments.
List the suit for directions on 5th May 2014 at 3.00 p.m.
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2014 (4) TMI 1309
Validity of Reassessment order made u/s. 143(3) r.w.s. 147 based on the subsequent decision of the Supreme Court - Deduction u/s 80IB wrongly been allowed - whether Tribunal was right in quashing the assessment passed u/s.147?
HELD THAT:- A reading of the order revising the assessment by the Assessing Officer which was subject matter of appeal before the Commissioner of Income Tax (Appeals) and Income Tax Appellate Tribunal show that it sought to revise the first order passed which got merged with the order of the Tribunal which had attained finality.
Thus, if the Revenue is questioning the quantum of relief granted to the assessee, the order available for revision would be the order dated 18.05.2005. When this is not subjected to any revision under Section 147 of the Act, we fail to understand how Revenue would be justified in sustaining its plea on its jurisdiction to revise the order under Section 147 of the Act. On this sole ground, we dismiss the Tax Case (Appeal) filed by the Revenue.
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2014 (4) TMI 1308
Dishonour of Cheque - insufficient funds - legally enforceable liability - acquittal of accused - no proper service of the notice - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The Supreme Court in a series of decisions has dealt with the question of dishonour of cheques due to stop payment instructions. In the present case, on the first occasion when the cheques were returned dishonoured due to insufficient funds, IBPL did not initiate any action under Section 138 NI Act. It is only after the dishonour of the cheque on the third occasion on 29th March 2007 on account of the stop payment instructions that IBPL decided to initiate action under Section 138 NI Act. Therefore, for all practical purposes, the present cases must be treated as belonging to the category where the dishonour of the cheques was on account of stop payment instructions.
In M.M.T.C. Limited v. Medchl Chemicals & Pharma (P) Limited [2001 (11) TMI 837 - SUPREME COURT], the Supreme Court clarified that dishonour on account of stop payment instructions would also be covered under Section 138 NI Act and that presumption under Section 139 NI Act would be attracted even in such a case. However, it was clarified that the said presumption is rebuttable. As long as the Respondents were able to show that the stop payment instructions were issued for bona fide reasons, no liability under Section 138 NI Act would be attracted - In the present case, however, IBPL did not urge before the trial Court that the offence under Section 138 NI Act was attracted due to insufficient funds. The proceedings under Section 138 NI Act were initiated only when the cheques when presented for the third time on 29th March 2007 were dishonoured on account of the stop payment instructions. No question was asked of the defence witnesses as to whether on the date of the presentation of the cheques in question for third time on 29th March 2007, the balance in the accounts of ADPL was sufficient to honour the cheques.
In Laxmi Dyechem v. State of Gujarat [2012 (12) TMI 106 - SUPREME COURT], the issue was addressed in the context of dishonour of the cheque due to closure of the account. After referring to the decision of the Supreme Court in Rangappa v. Sri Mohan [2010 (5) TMI 391 - SUPREME COURT], it was held that "even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration".
Recently in Indus Airways P. Ltd. v. Magnum Aviation P. Ltd. [2014 (4) TMI 464 - SUPREME COURT], the Supreme Court held that there is a fine distinction between the civil liability and criminal liability under Section 138 NI Act.
In the present case, the depositions of CW-1 and CW-4 reveal that IBPL was aware even on the date of the agreement dated 24th February 2007 between it and ADPL that the properties in question were the subject matter of litigation. As spoken to by DW-2, there was a restraint order passed by the SDM on 16th January 2007 restraining the villagers from creating any third party interest. By the time the cheques were presented for payment for the third time, a restraint order was also passed by this Court.
The Court finds that the conclusion reached by the trial Court that the Respondents could not be held guilty for the offence under Section 138 NI Act does not suffer from any legal infirmity - No grounds have been made out for grant of leave to appeal against the impugned judgment of the trial Court.
Petition dismissed.
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2014 (4) TMI 1307
Seeking stay of the Order-in-Appeal - Ld. Commissioner (Appeal) has passed the order without allowing time to the Department, to place evidences - violation of Principles of natural justice - HELD THAT:- The Department had pleaded violation of natural justice as relevant evidences could not be placed before the Ld. Commissioner (Appeal). From the impugned order, we find that the Ld. Commissioner (Appeal) has made a specific observation that the Department could not substantiate their claim by producing sufficient evidences. In these circumstances, in the interest of justice, it is prudent that the case be remitted to the Ld. Commr. (Appeals) for deciding the issue afresh, after allowing the Department to furnish evidences in support of their claim. Needless to mention that a reasonable opportunity of hearing be granted to both sides.
The Ld. Commissioner (Appeal) is directed to decide the case on merit within four months from the date of communication of this order - Appeal is allowed by way of Remand.
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2014 (4) TMI 1306
Liability to pay Cross Subsidy Surcharge (CSS) to the Respondent, WESCO which is a Distribution Licensee for the area in question - developer of a notified Special Economic Zone - Appellant is a "Deemed Distribution Licensee" for the purpose of Electricity Act - requirement to apply once again to Electricity Regulatory Commission under the Electricity Act for grant of a licence or the deeming fiction carved out in Section 14 of the Electricity Act automatically dispenses with this requirement and ipso facto makes such SEZ developer a distribution licensee.
HELD THAT:- In the present case no doubt by virtue of the status of a developer in the SEZ area, the Appellant is also treated as deemed Distribution Licensee. However with this, it only gets exemption from specifically applying for licence under Section 14 of the Act. In order to avail further benefits under the Act, the Appellant is also required to show that it is in fact having distribution system and has number of consumers to whom it is supplying the electricity. That is not the case here. For its own plant only, it is getting the electricity from Sterlite Ltd. for which it has entered into PPA. We have to keep in mind the object and scheme of SEZ Act which envisages several units being set up in a SEZ area. This is evident from a collective reading of the various provisions of the SEZ Act viz. Section 2(g)(j)(za)(zc), Section 3, 4, 11, 12, 13 and 15. There can be a Sector Specific SEZ with Several Units i.e. for IT, Mineral Based Industries etc. but instances of single unit SEZ like in the present case of the Appellant may be rare.
The Notification dated 03.03.2010 providing for the "Developer" of SEZ being deemed as a "Distribution Licensee" was issued keeping in view the concept of Multi Unit SEZs and will apply only to such cases in which the Developer is supplying the power to multiple Units in the SEZ. The said Notification will not apply to a Developer like the Appellant who has established the SEZ only for itself.
Thus, on the facts of this case it is not possible for the Appellant to avoid payment of CSS to WESCO.
There are no merit in this Appeal which is accordingly dismissed.
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2014 (4) TMI 1305
Grant of regular bail - alleged recovery of 4 kgs. of heroin - Section 167 Cr.P.C. read with Section 36(A) of the Narcotic Drugs and Psychotropic Substances Act - HELD THAT:- Under Section 167 of the Code of Criminal Procedure and under its various sub-sections, the maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 to 90 days keeping in view the gravity of offence. If the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167(2) of the Code of Criminal Procedure if he makes an application for such purpose. However, under the Act, the maximum period of 90 days fixed under Section 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the Act.
The application preferred by the prosecution seeking extension of time has been produced by the learned State counsel before this Court during the course of hearing and a perusal thereof would reveal that the only basis and reason cited therein was that the report of Chemical Examiner had not been received.
There has been a noncompliance of the provisions contained in Section 36-A of the Act. The provision mandates a report of the Public Prosecutor indicating the progress of the investigation as also the specific and compelling reasons for seeking the detention of the accused beyond a period of 180 days. The reasons recorded by the trial Court in the order dated 12.03.2014 do not even advert to the conditions as provided for under Section 36-A(4) of the Act.
The Hon'ble Supreme Court in HITENDRA VISHNU THAKUR VERSUS STATE OF MAHARASHTRA [1994 (7) TMI 343 - SUPREME COURT] while dealing with the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA which is parimateria with the proviso to sub- Section (4) of Section 36-A of the Act had categorically held that even though the proviso does not specifically mandate the issuance of a notice to the accused while seeking extension yet the issuance of a notice has to be read into the provision which would be, both, in the interest of the accused, as also the prosecution as well as for doing complete justice between the parties. Such requirement was held to be in consonance with the principles of natural justice.
This Court would have no hesitation in observing that the application submitted seeking extension of time for completion of investigation as also the order passed thereon by the Special Judge, Tarn Taran granting extension of three months have been done in a routine and mechanical fashion.
The petitioner in the present case having filed the bail application on the expiry of the stipulated period as per Section 167(2) of the Code of Criminal Procedure had acquired an indefeasible right for grant of bail notwithstanding the grant of extension of time by the trial Court for completion of investigation and presentation of final report.
Bail granted subject to conditions imposed - bail application allowed.
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2014 (4) TMI 1304
Writ petition filled seeking to challenge the notice issued by ACIT - Admittedly, on the same cause of action writ petitioner had earlier filed one writ petition and the same was dismissed by the Division Bench as withdrawn on the request of writ petitioner - HELD THAT:- The applicability of the principle of Rule 1 of Order XXIII CPC to writ petitions under Article 226/227 is thus not on the ground of res judicata but on ground of public policy. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 once again.
In the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. Even on merits there was no ground to reverse the decision of the High Court.
Present writ petition is not entertainable because it was not disputed by the learned counsel for the petitioner that the cause of action which was the subject matter of the earlier writ petition and the one involved in the present writ petition is identical an d secondly, no liberty was taken to file second petition. That being so, this writ petition deserves to be dismissed in limini in the light of the law laid down by the Hon’ble Supreme Court in the case of Sarguja [1986 (11) TMI 377 - SUPREME COURT]
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2014 (4) TMI 1303
Jurisdiction of the Assessing Officer - Change of jurisdiction relating to the areas within the jurisdiction of the different Directors General or Chief Commissioners or Commissioners - HELD THAT:- As assessee has objected the jurisdiction of the AO within the time limit as has been specified u/s 124(3)(a), therefore, the application moved by the assessee for challenging the jurisdiction was a valid one. As noted Section 124(4) lays down that where an assessee calls in question the jurisdiction of the AO, then the AO shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made to CCIT or DG & CIT.
Need to refer to Director General, Chief Commissioner or Commissioner concerned - Section 124(2), it is apparent that incase the assessee objects about the jurisdiction and the AO is not satisfied, AO is bound to refer the question of the jurisdiction to the Director General or the Chief commissioner or the Commissioner, incase it relates to the same Director General or Chief Commissioner or the Commissioner, but where the question of jurisdiction relating to the areas within the jurisdiction of the different Directors General or Chief Commissioners or Commissioners, the AO is bound to refer it to the Director General, Chief Commissioner or Commissioner concerned and if those people are not in agreement, then it should be decided by the Board or by such Director General or Chief Commissioner or Commissioner as the Board may specify this by notification in the Official Gazette.
In the impugned case, we noted that the AO himself has decided the issue of the jurisdiction and sent the notice to the assessee u/s. 142(1), which remained uncomplied and accordingly the best judgment assessment was passed u/s. 144.
AO was not correct in law in deciding the issue of the jurisdiction himself. We, therefore, set aside the order passed by the Assessing Officer and restore the issue to the AO with the direction that the Assessing Officer may proceed with the assessment after getting the issue relating to the jurisdiction determined in accordance with the provisions of Section 124(2) of the I.T. Act.
Appeal filed by the assessee is allowed statistically, whereas the appeal of the Revenue stands dismissed.
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2014 (4) TMI 1302
Condonation of delay in filing appeal - failure to produce medical certificate to prove the fact that she was bed ridden - HELD THAT:- A careful perusal of the law laid down by the Supreme Court in various decisions, clearly revealed that to remove injustice the delay has to be condoned and should not rejected on technical grounds.
In this case since the revision petitioner has given sufficient reason for condoning the delay, but the trial Court dismissed the application only on the main ground that the revision petitioner has not produced medical certificate to show that she was ill and her doctor advised her to take bed rest till 27.7.2006. The above said finding of the trial Court is perverse and illegal and hence, the order passed by the trial Court is to be set aside and the revision petition is to be allowed.
In the result, the civil revision petition is allowed and the order passed by the trial Court is set aside and the delay of 440 days in filing the appeal is condoned and the above said application is allowed accordingly.
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2014 (4) TMI 1301
Disallowance u/s 14A r.w.r 8D - applicability of Rule 8D - HELD THAT:- Hon’ble High Court in in Birla Corporation Limited Versus Commissioner of Income Tax-II, Kolkata [2014 (2) TMI 1032 - CALCUTTA HIGH COURT] has held “the applicability of Rule 8D is prospective”. At the outset, assessee fairly stated that the Tribunal is taking a consistent view as regards the disallowance u/s. 14A of the Act that 1% is to be disallowed of the exempted income.
Tribunal Kolkata Bench has also confirmed the same in many cases, one of the same is in the case of Select Products Pvt. Ltd. [2014 (3) TMI 1218 - ITAT KOLKATA] Hence, we direct the AO to recompute the disallowance by restricting at 1% of the exempted income. We direct the AO accordingly.
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2014 (4) TMI 1300
Assessment of trust - necessity to remand the case back to the Director by ITAT - ITAT was not satisfied with the order passed by the Director of Income Tax (Exemptions) u/s 12AA(3) and took upon the matter to itself allowing exemption to assessee trust - revenue contented if the Tribunal was not satisfied with the order passed by the Director of Income Tax (Exemptions) u/s 12AA(3) then as an appellate Court or an authority, all that needed to be done was to quash that order and send the matter back to the Director of Income Tax (Exemptions) and for scrutiny as to whether the objects are identical and whether all requirements of the statute are complied with rather takin upon the matter to itself - HELD THAT:- In the present case, what the Tribunal noted and on fact is that the appellant before is Sri Shanmukhananda Fine Arts and Sangeetha Sabha Charitable Trust. The assessee society is a registered society and covered by both, the Societies Registration Act, 1960 and Bombay Public Trust Act, 1950. It is termed as a Charitable Institution. It changed the objects and that was permitted by the Charity Commissioner.
Thereafter, the Trust named Bharatiya Music and Arts Society was amalgamated with the assessee society on 27th January, 2005. The Director sought to question this and even the lapses allegedly committed by the assessee society in not communicating to the Income Tax Department the changes made in the objects of the Trust.
Finding that the other Trust which amalgamated with the assessee society was also established and founded for the same objects and purpose and that a case therefore was not made out for withdrawal of the registration, that the Income Tax Appellate Tribunal, after setting aside the order of the Director, granted full relief. In the given facts and circumstances, the Tribunal found that it was not necessary to remit or remand the case back to the Director.
That was essentially because the facts were never in dispute. It is in these circumstances and finding that the view taken by the Tribunal is a possible one, that the present appeal does not deserve to be admitted. No substantial question of law.
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2014 (4) TMI 1299
No consensus-id-idem on actual rent in 1995 in respect of the suit premises - matter referred to a Third Judge - HELD THAT:- Since the figure arrived at by the trial court in the range "between Rs. 14/- and Rs. 18/- per sq. ft" per month is with reference to the rent at the R.N Mukherjee Road property of Rs.20 per sq. ft per month, on the basis of the additional evidence, the suit premises on Kiran Shankar Ray Road which has its entrance on Old Post Office Street should have commanded roughly 20 per cent more on account of rent than the comparable R.N. Mukherjee Road property at the relevant time. The rent of the R.N. Mukherjee Road Property was Rs.20 per sq. ft per month. The rent in respect of the suit premises in 1995 is thus assessed to be 20 per cent in excess of the value of rent at the R.N. Mukherjee Road property of Rs. 20; or, Rs.24 per sq. ft per month.
The question posed in the reference is answered accordingly by holding that the rent in 1995 in respect of the suit premises would have been Rs.24 per sq. ft per month.
In accordance with the mandate of Clause 36 of the Letters Patent, the majority view of the Judges who have heard the relevant point in the appeal is recorded as Rs.24 per sq. ft per month being the rate of rent in the suit premises in the year 1995.
The reference is disposed of.
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2014 (4) TMI 1298
Winding up under section 433(f) of the Companies Act, 1956 - petitioner contended that it is just and equitable to wind up the company, inter-alia, on the ground that the substratum of the company has almost completely been eroded - seeking grant of interim relief - HELD THAT:- The power of the company court to pass interim orders commences from the time the petition for winding-up is presented/lodged/filed. There are cases where it is necessary to pass urgent interim orders the moment the petition is filed. This would be so irrespective of whether the petition for winding up is on the ground that the company is unable to pay its dues or on the ground that it is just and equitable to do so.
The contention that power of the company court to pass interim relief is only when the company petition is finally heard is rejected. The power of the company court to grant interim reliefs commences upon the presentation of the petition itself.
Appeal disposed off.
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2014 (4) TMI 1297
Dismissal of application filed under Order 7, Rule 11(d) of CPC on 3.3.2011 - seeking relief of declaration in respect of easement of necessity and easement by grant and also permanent injunction - HELD THAT:- It is well settled law that a rightly concluded order based upon wrong reasons cannot be upset or reversed only because the reasons are incorrect. Therefore, it will have to be seen whether the statements made by the respondent No. 1 in the plaint, without any doubt or dispute, show that the suit is barred by any law in force.
From the law laid down in the cases of Popat and Kotecha Property [2005 (8) TMI 691 - SUPREME COURT] and Devi Singh [1972 (7) TMI 117 - SUPREME COURT], it is clear that while deciding an application under Rule 11(d), Order 7 CPC, Court cannot go beyond the averments made in the plaint and cannot decide the disputed questions of facts or law at that stage. In the instant case, the dispute between the parties is about illegally blocking the suit road providing access to the suit property. Respondent No. 1 is claiming easement of necessity and easement by grant in respect of suit road and it is it's case that same is being denied to it - merely on the basis of statements made in the plaint, it cannot be said that section 52-A GID Act was applicable and its requirements ought to have been fulfilled before filing of the suit. The plaint, therefore, could not have been rejected under Rule 11(d), Order 7 of the CPC.
There are no illegality nor any perversity in the impugned order. It does not call for any interference. Point is answered accordingly. CRA, therefore, stands dismissed.
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2014 (4) TMI 1296
Seeking to explain the delay in registration of FIR on the basis of the complaint of the petitioners - HELD THAT:- There are occasion to come across cases where the police administration has shown laxity in the matter of registration of first information report and in investigating the same, thereby pushing the aggrieved complainant to knock the doors of the relevant magistrate. It is time for the Commissioner of Police, Kolkata Police (hereafter the CP) insofar as the police officials posted in police stations under his jurisdictional control as well as the Director General and Inspector General of Police (hereafter the DGP) for the police officials posted at police stations beyond the jurisdiction of Kolkata Police to introspect and to take stock of the performance of each of such officers who, despite being aware of the law relating to registration of first information report, simply refuse to register the same on the specious ground that an inquiry is necessary without, however, realizing the situation which would call for an inquiry.
It is high time for the police officers to be made aware of the decisions of the Supreme Court as well as this Court on the point of registration of first information report - the DGP and the CP shall take appropriate steps in this regard.
Since Mr. Amit Biswas has been transferred from the post of Officer-in-Charge, Entally Police Station on 17th January, 2014, the present incumbent on such post shall submit a status port regarding progress of investigation of of Entally P.S. Case No.22 dated 15th January, 2014 before this Court on 23rd April, 2014, when this writ petition shall be listed under the heading ‘To Be Mentioned’.
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2014 (4) TMI 1294
Validity of sections made in respect of the post, namely, Medical Laboratory Technician (MLT) - all appointees not impleaded - procedure adopted for selection was vitiated as the candidates were selected only by interview without holding any written test though the past practice was to conduct an examination - HELD THAT:- In the case at hand neither any rule nor Regulation was challenged. In fact, we have been apprised that at the time of selection and appointment there was no rule or Regulation. A procedure used to be adopted by the administrative instructions. That apart, it was not a large body of appointees but only 182 appointees. Quite apart from that the persons who were impleaded, were not treated to be in the representative capacity. In this regard, it is profitable to refer to some authorities.
In KU. RASHMI MISHRA VERSUS MADHYA PRADESH PUBLIC SERVICE COMISSION & ORS. [2006 (10) TMI 485 - SUPREME COURT], after referring to Prabodh Verma [[1984 (7) TMI 397 - SUPREME COURT]] and Indu Shekhar Singh [2006 (4) TMI 565 - SUPREME COURT], the Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the Appellant to implead them as parties in the proceeding. Ultimately, the Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the Appellant therein.
In Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors. [2008 (11) TMI 718 - SUPREME COURT], this Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without affording an opportunity of hearing to them, the selection could not be set aside.
Thus, in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ Petitioners.
When the Respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated - HELD THAT:- It is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. [1986 (3) TMI 329 - SUPREME COURT], in the said case a three-Judge Bench, taking note of the fact that the Petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ Petitioner should not have been granted any relief by the High Court.
In Union of India and Ors. v. S. Vinod Kumar and Ors. [2007 (9) TMI 700 - SUPREME COURT], the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
The twin contentions proponed by the learned Counsel for the Appellant deserve acceptation - Appeal allowed.
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2014 (4) TMI 1293
Liability of Service Tax - erection, installation, and maintenance services - billing separately for the materials and for the services - HELD THAT:- From the voluminous record which is produced, it is found that appellant has, in fact, produced records. Basically, the issue needs to be verified from the factual matrix. Hence, instead of going into the merits of the case, it is deemed fit to remand the matter back to the adjudicating authority to reconsider the issue afresh by going into all the claims by the appellant as regards discharge of VAT on supply portion and discharge on Service Tax on the services portion.
The matter is remanded back to the adjudicating authority to reconsider the issue afresh after following the principles of natural justice - appeal allowed by way of remand.
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