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Showing 21 to 40 of 787 Records
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2007 (8) TMI 812
Issues:
The judgment involves challenging orders issued by the Sales Tax Appellate Tribunal rectifying common orders in appeals against sales tax assessments under the local Act and under the Central Sales Tax Act for the assessment years 1998-99 and 1999-2000.
Issue 1: Rectification under Section 43 of KGST Act
The Petitioner, a small scale industrial unit, was engaged in purchase of field rubber latex, conversion to centrifuged latex, and sale of products both local and interstate. The Tribunal rectified their earlier order based on conflicting decisions of the High Court and Supreme Court. The Tribunal invoked powers under Section 43 of the KGST Act to rectify the order, but the High Court found that there was no apparent error on the face of the record to justify the rectification. The Tribunal's rectification resulted in adverse consequences for the Petitioner, leading to a higher CST rate. The High Court held that the Tribunal wrongly invoked jurisdiction under Section 43 to correct their earlier order, as the issue was highly debatable and capable of different conclusions. The rectified order was set aside.
Issue 2: Original Order and Revision
The Government Pleader argued that the original order of the Tribunal was not accepted by the Respondents, but by the time they sought to file revision petitions, the Tribunal had already initiated rectification proceedings resulting in the impugned orders. The Government Pleader contended that since the Tribunal rectified the earlier orders in favor of the Revenue, a revision could not be filed. The High Court did not express a view on the correctness of the original order, Ext. P-1, which now stands restored by setting aside the rectified orders. The High Court left it to the Respondents to challenge the original order in appropriate proceedings.
The Writ Petitions were allowed accordingly.
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2007 (8) TMI 811
Issues Involved:
1. Validity of the cheques issued by the defendants.
2. Alleged dues owed by the plaintiff to the defendants.
3. Limitation period for filing the suit.
4. Liability of the guarantors.
Summary:
1. Validity of the Cheques:
The defendants contended that the cheques were issued in blank and only as security, with the amounts filled in by the plaintiff without their consent. The court found this defense to be "sham, illusionary, moonshine and an afterthought," as the defendants had acknowledged their liability in various correspondences, including a covering letter dated 16.3.2000, which accompanied the cheques. The court concluded that the cheques were given towards the price of goods and not as collateral security.
2. Alleged Dues Owed by the Plaintiff:
The defendants claimed that the plaintiff owed them more than Rs. 4 crores on account of Central Excise, MODVAT, and conversion charges due to the plaintiff's failure to provide necessary documents. The court noted that the defendants did not make any claim or counterclaim for these amounts until the leave to defend application and that such claims were barred by limitation. Consequently, this defense did not raise any triable issue.
3. Limitation Period for Filing the Suit:
The defendants argued that the suit was barred by limitation as it was filed beyond three years from the date of issuance of the cheques (16.3.2000). The court held that the limitation period commenced from the date the cheques were returned unpaid (1.6.2000), making the suit filed on 23.5.2003 within the limitation period.
4. Liability of the Guarantors:
Defendants No. 2 to 5, who had provided personal guarantees for the dues of defendant No. 1, were held jointly and severally liable. The court referred to the personal guarantees executed by these defendants and confirmed their liability as co-extensive with that of defendant No. 1.
Conclusion:
The court dismissed the defendants' application for leave to defend, finding their defenses to be without merit. The plaintiff was awarded a decree for Rs. 5,51,74,220/- with interest at 12% p.a. from the date of the suit until realization, instead of the claimed 25% p.a. The defendants were entitled to an adjustment of Rs. 35 lacs already paid during the pendency of the suit.
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2007 (8) TMI 810
Issues involved:
The rejection of applications for issuing summons to the accused for recording examination-in-chief based on affidavits under Section 145(1) of the Negotiable Instruments Act, 1881 by the learned Metropolitan Magistrate.
Summary:
Issue 1: Rejection of applications for issuing summons based on affidavits
The petitioners, accused in three criminal cases, filed applications for summons to examine the complainant's partner for recording his examination-in-chief based on an affidavit and documents filed during trial. The learned Metropolitan Magistrate rejected these applications citing Section 145 of the Negotiable Instruments Act, stating that evidence in the form of affidavit is subject to cross-examination and omissions can be addressed during that process. The Magistrate held that the petitioners cannot be compelled to enter the witness box to lead evidence contradicting the affidavit under Section 145.
Issue 2: Interpretation of procedural laws
The counsel for the accused referred to Section 296 of the Code of Criminal Procedure and Sections 16, 61 of the Indian Evidence Act, arguing that affidavits in cases under Section 138 of the Negotiable Instruments Act are used to fill deficiencies in complaints. The counsel highlighted the importance of cross-examination to bring out contradictions and the need for witnesses to verify facts stated in affidavits. It was emphasized that documents exhibited along with affidavits cannot be considered as evidence per se without proper examination and cross-examination.
Issue 3: Compliance with procedural requirements
The Court emphasized the procedural requirements under Sections 138, 139, 140, 141 of the Act, stating that documents submitted with complaints or affidavits cannot be treated as evidence on their own. The Court clarified that the affiant must stand in the witness box, verify the facts in the affidavit under oath, and be subject to cross-examination by the accused. The Court rejected the petitions challenging the rejection of summons applications, noting that the Trial Court should ensure compliance with procedural laws during the trial.
Conclusion:
The petitions challenging the rejection of applications for issuing summons based on affidavits were dismissed. The Court highlighted the importance of proper verification and cross-examination of facts stated in affidavits, emphasizing the procedural requirements for conducting trials in such cases. An undertaking was accepted regarding a non-bailable warrant, and appropriate steps were to be taken to communicate the court's order to the concerned police station.
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2007 (8) TMI 809
Issues involved: Application under Order VII Rule 11 of CPC for rejection of plaint on grounds of suit being barred by law u/s 446 of Companies Act, 1956.
Issue 1 - Suit Barred by Law (u/s 446 of Companies Act, 1956):
The defendant No. 2 filed an application under Order VII Rule 11 of CPC seeking rejection of the plaint on the grounds that the suit is barred by law u/s 446 of the Companies Act, 1956, as it was filed against a company (defendant No. 1) that had been wound up. The defendant argued that the suit should be rejected as no permission was obtained from the Company Court prior to filing the suit against a wound-up company. Reference was made to a Division Bench decision of the Bombay High Court emphasizing the necessity of obtaining permission before suing a wound-up company. The defendant contended that since the suit is barred by Section 446, the plaint should be rejected.
Issue 2 - Maintainability of Suit Against Defendant No. 2:
The plaintiffs argued that the suit is not barred, stating that the property in question was initially leased to defendant No. 1, who used it for the residence of defendant No. 2, the then Managing Director. After the leases expired, the defendants were required to vacate the premises. The plaintiffs claimed that they were unaware of defendant No. 1 being wound up earlier and served legal notices to both defendants. Defendant No. 2 replied claiming tenancy rights. The court noted that defendant No. 2 was in unauthorized occupation of the property, as no lease deed or arrangement existed for his continued possession. Despite arguments, the court found the suit maintainable against defendant No. 2 in his personal capacity, as the plaint cannot be rejected in part.
Judgment:
After considering arguments and examining the plaint and accompanying documents, the court held that the application under Order VII Rule 11 CPC cannot be allowed. The court found the suit maintainable against defendant No. 2, who was in unauthorized occupation of the property. As the suit cannot be rejected in part, the application was rejected, allowing the suit to proceed against defendant No. 2.
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2007 (8) TMI 808
Issues involved:
The issue involves quashing of proceedings under Section 138 of the Negotiable Instruments Act based on the legality of the debt and the validity of a cheque issued for a time-barred debt.
Summary:
The petitioner sought to quash proceedings under Section 138 of the Negotiable Instruments Act, arguing that the cheque was not issued for a legally enforceable debt as the debt was time-barred. The respondent contended that by issuing the cheque, the petitioner had entered into a valid agreement to pay the debt barred by limitation. The Court considered the submissions and examined the legal aspects of the case.
The explanation under Section 138 defines "debt or other liability" as a legally enforceable debt. The complaint indicated that the debt was time-barred, but the accused had acknowledged the debt in writing on a later date. Section 25(3) of the Indian Contract Act states that a promise to pay a debt barred by limitation is a valid contract, providing a fresh cause of action.
Referring to a similar case, the Court held that issuing a cheque acknowledges liability, even if the debt is time-barred. The proceedings against the accused were not quashed, as the validity of the cheque and the consent of the promisor needed to be determined by the trial court. The petition was dismissed, leaving the decision to the trial court to ascertain the voluntary nature of the cheque issuance post-limitation period.
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2007 (8) TMI 807
Issues involved: Determination of the place of management u/s Article 8 of the Indo Mauritius Treaty.
The High Court of Bombay, in the case at hand, addressed various questions raised by the assessee. It was noted that certain questions had become infructuous due to a subsequent order of the Tribunal. The primary issue that remained pertained to determining the place of management in accordance with Article 8 of the Indo Mauritius Treaty.
The learned Counsel argued that the Tribunal, in its findings, did not consider a certificate dated 12th November, 2003, and instead relied on evidence collected by the Assessing Officer (A.O.). This evidence was not disclosed to the appellant, leading to concerns about the violation of principles of natural justice and fair play. Consequently, it was deemed necessary for the Tribunal to rehear the entire appeal in light of its previous order dated 17th June, 2005.
In light of the above, the High Court set aside the impugned order to the extent it was not recalled by the order dated 17th June, 2005. The Tribunal was directed to reconsider the question of law framed while disposing of the appeal based on its previous order. As a result, the appeal was allowed, with no specific order regarding costs being issued.
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2007 (8) TMI 806
Issues involved:
Appeal against acquittal u/s 138 of Negotiable Instruments Act, 1881.
Details of the Judgment:
1. The appellant, a Finance Company, filed a complaint against the accused, an architect, for issuing a cheque that was dishonored. The accused claimed the cheque was issued as collateral security, not in discharge of a debt.
2. The trial court acquitted the accused, concluding that the cheque was issued as collateral security, not for a legally enforceable debt, hence no conviction u/s 138 of the Act.
3. The appellant argued that the accused failed to contest the loan statement and took inconsistent defenses, unable to rebut the presumption u/s 139 of the Act. The appellant contended that even if the cheque was security, they were entitled to complete it for payment.
4. The accused argued that the cheque amount exceeded the actual debt, citing a Madras High Court case. They claimed filling the cheque without consent was an alteration, referring to an Andhra Pradesh High Court case.
5. The accused also relied on a Goa High Court decision, interpreting 'debt' in Section 138 to mean the debt existing when the cheque was issued, not later liabilities.
6. The trial court found that the accused had proven the cheque was given as security, consistent in his plea, while the appellant's position was vacillating. The Supreme Court precedent supported the defense that the cheque was issued as security, not for debt discharge.
7. The appellant's claim that the cheque amount was due on the date of issuance was refuted, as the accused did not owe that sum at the time. The appellant's argument that they could fill in the cheque for the existing liability on the issuance date was rejected.
8. The trial court's conclusion was upheld, finding no merit in the appeal, which was dismissed accordingly.
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2007 (8) TMI 805
Supreme Court of India dismissed the Civil Appeal. Delay was condoned. Judgement by Mr. Ashok Bhan and Mr. V.S. Sirpurkar, JJ. (2007 (8) TMI 805 - SC).
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2007 (8) TMI 804
The Supreme Court of India, in a civil appeal, dismissed the Department's appeal on excisability issue, citing a previous judgment involving Crane Betel Nut Powder Works. The appeal was dismissed with no order as to costs.
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2007 (8) TMI 803
Issues Involved:
1. Legality of the resumption order dated 13.9.91.
2. Possession of the plaintiff over the plot in question.
3. Locus-standi of the plaintiff to file the suit.
4. Bar of limitation on the suit.
5. Estoppel from filing the suit by the plaintiff's own act and conduct.
6. Non-joinder of necessary parties.
Summary:
Issue 1: Legality of the Resumption Order
The trial court found that the resumption order dated 13th September 1991 was illegal and against the principles of natural justice. The court noted that the high tension line and electric pole were removed only on 30th November 1995, making it impossible for the respondent to comply with Clause 8 of the agreement. The appellant did not provide an opportunity for the respondent to be heard, nor was a show cause notice served. Consequently, the resumption order was set aside.
Issue 2: Possession of the Plaintiff
The trial court concluded that the respondent was in possession of the suit plot, as the resumption order was not served upon the respondent. The appellate court affirmed this finding, noting that no cogent evidence was produced by the appellant to show that the respondent had prior knowledge of the resumption order.
Issue 3: Locus-Standi of the Plaintiff
The trial court found that the respondent had the locus-standi to file the suit, as the respondent was in possession of the plot and had complied with the terms of the agreement to the extent possible given the circumstances.
Issue 4: Bar of Limitation
The trial court held that the suit was not barred by limitation. The appellate court supported this finding, stating that the resumption order was not served on the respondent, and thus the limitation period did not commence.
Issue 5: Estoppel from Filing the Suit
The trial court found no merit in the appellant's argument that the respondent was estopped from filing the suit by his own act and conduct. The appellate court agreed, noting that the respondent had made several attempts to have the high tension wires removed.
Issue 6: Non-Joinder of Necessary Parties
The trial court found that the suit was not bad for non-joinder of necessary parties. The appellate court affirmed this finding.
Additional Evidence:
The High Court rejected the application for acceptance of additional evidence under Order 41 Rule 27 of the CPC. The court held that the legal notice dated 8th October 1991 was not admissible as additional evidence, as it was not proved that the notice was issued by the respondent. The High Court also noted that the appellant had ample opportunity to produce this evidence during the trial and first appeal but failed to do so.
Conclusion:
The Supreme Court upheld the findings of the lower courts, affirming that the resumption order was illegal and the suit was not barred by limitation. The appeal was dismissed with no order as to costs.
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2007 (8) TMI 802
The Supreme Court of India dismissed the Civil Appeal after condoning the delay. (2007 (8) TMI 802 - SC)
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2007 (8) TMI 801
Issues Involved:
1. Authority to charge premium for prepayment/foreclosure of the loan account.
2. Liability of petitioners to pay 2% premium on the outstanding balance of the amount.
Summary:
Issue 1: Authority to Charge Premium for Prepayment/Foreclosure of the Loan Account
The petitioners borrowed a loan of Rs. 1 crore from the respondent-Corporation for developing a touring unit/Hotel in Karkala Town and entered into a Deed of Hypothecation dated 20.09.2003. The petitioners challenged the respondent's communication dated 15.07.2005, which required a 2% premium for foreclosure/prepayment of the loan account, claiming it was arbitrary and without jurisdiction. The respondents argued that the premium was necessary to mitigate the risk of loss due to the falling interest regime, as the Corporation borrows funds from institutions like SIDBI at high rates and lends them at fixed rates. The Court noted that the hypothecation deed explicitly required prior approval and allowed the Corporation to stipulate terms for prepayment, including the imposition of a premium. The Court held that the Corporation has the authority to levy a prepayment/foreclosure premium as per the terms agreed upon in the hypothecation deed and u/s 37 of the Indian Contract Act, 1872, and Sections 24 and 25 of the State Financial Corporations Act, 1951.
Issue 2: Liability to Pay 2% Premium on the Outstanding Balance of the Amount
The Court examined whether the petitioners were liable to pay the increased 2% premium as per the Circular dated 14.05.2005. It was found that at the time of availing the loan in September 2003, the applicable prepayment premium was 1%. The Court concluded that the petitioners are governed by the terms and conditions, including the premium rate, that were in force when the loan was sanctioned. The Circular dated 14.05.2005, which increased the premium to 2%, could not be applied retrospectively to the petitioners' loan account. Therefore, the petitioners are liable to pay only a 1% premium on the outstanding balance of the loan amount.
Order:
1. It is declared that the petitioners are liable to pay a 1% premium on the advanced payment/foreclosure of their loan account with the respondent-Corporation.
2. The respondent-Corporation is directed to close the loan account of the petitioners on payment of a 1% premium on the outstanding loan balance amount being prepaid/foreclosed. If the petitioners have already paid a 2% premium, they are entitled to a refund of 1% from the Corporation.
The writ petition is disposed of accordingly, with no costs.
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2007 (8) TMI 800
Issues involved: Company's failure to supply oil as per agreement, failure to respond to demands for payment, invocation of Companies Act provisions for unpaid amount, winding up petition, admission of company petitions, direction for compliance with formalities, lack of response from respondent company, recommendation by BIFR, admission of petition by the court, direction to Official Liquidator, disposal of petitions.
Judgment Summary:
Company Petition No.1180 of 2002:
The petitioners imported transformer oil from a US company, supplied a portion to another company for re-processing, but the latter failed to supply the balance as per the agreement. Despite demands for payment or oil, the respondent company did not respond. The petitioners invoked Sections 433 and 434 of the Companies Act, 1956 for the unpaid amount. The court, after considering the lack of response from the respondent company, admitted the petition and directed compliance with formalities, including advertising the petition. The respondent company's failure to dispute the demand led to the court's decision that the company should be wound up. The petitioners proved publication, and as there was no response from the respondent company, the court found the company liable to pay the due amount.
Company Petition No.813 of 2003:
This petition was related to a BIFR case against the respondent company. The court admitted this petition as well and directed the Official Liquidator to take necessary steps in accordance with the law. Despite the lack of response or affidavit from the Official Liquidator, the court, based on the circumstances and lack of response from the respondent company, granted the prayer clauses of the petition. Both petitions were disposed of accordingly.
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2007 (8) TMI 799
Issues Involved:
1. Whether there could be any subsequent sale effected by the respondent as per explanation 1 appended to Section 3(b) of the CST Act in furtherance to the ultimate buyer - KPTCL before the commencement of the movement of the goods from another State to Karnataka.
2. Whether the three independent simultaneous transactions of sale effected before the commencement of the movement of goods could be regarded as covered under Section 3(a) of CST Act and not under Section 3(b) of CST Act.
3. Whether the State of Karnataka which has issued "C" forms to the registered dealer is the "Appropriate State" to levy C.S.T. as per the proviso appended to Section 9(1) of the CST Act.
4. Whether the Tribunal is right in holding the levy of tax can be attracted in the State of Karnataka only when there is a local sale or an inter-State sale resulting in the movement of goods from the respondent to the KPTCL in the course of inter-State trade.
Issue-wise Detailed Analysis:
1. Subsequent Sale under Section 3(b) of CST Act:
The court examined whether a subsequent sale could be effected by the respondent before the commencement of the movement of goods from another State to Karnataka. The respondent claimed that the supply of goods to KPTCL was a transit sale covered under Sections 3(b) and 6(2) of the CST Act. However, the Assessing Authority held that the sale was an inter-State sale under Section 3(a) of the CST Act, as the sale was completed when the goods were appropriated before the commencement of movement.
2. Simultaneous Transactions under Section 3(a) or 3(b) of CST Act:
The court considered whether the three independent simultaneous transactions of sale effected before the commencement of movement of goods could be covered under Section 3(a) of the CST Act. The Assessing Authority concluded that the sale of goods was completed before the movement began, thus falling under Section 3(a) rather than Section 3(b). This conclusion was based on the terms of the contract and the lorry receipts indicating that the goods were appropriated to KPTCL before their movement.
3. Appropriate State for Levy of CST:
The court examined whether Karnataka, which issued "C" forms to the registered dealer, was the "Appropriate State" to levy CST as per the proviso to Section 9(1) of the CST Act. The Assessing Authority and the First Appellate Authority held that Karnataka was the appropriate state to levy CST, as the sale of goods was completed in Karnataka, making it the state from which the movement of goods commenced.
4. Levy of Tax in Karnataka:
The court considered whether the Tribunal was correct in holding that the levy of tax could only be attracted in Karnataka when there was a local or inter-State sale resulting in the movement of goods from the respondent to KPTCL. The Tribunal's decision was set aside, as the court found that the sale fell under Section 3(a) of the CST Act, making Karnataka the appropriate state to levy the tax.
Conclusion:
The court allowed the revision petition, answering the questions of law in favor of the Revenue. It was held that the sale of goods to KPTCL was an inter-State sale under Section 3(a) of the CST Act, and Karnataka was the appropriate state to levy CST. The Tribunal's judgment was set aside, and the orders of the First Appellate Authority were restored.
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2007 (8) TMI 798
Issues involved:
The issue involves quashing of the summoning order dated 18.12.2003 u/s 18(a)(i) read with Section 27(c) of the Drugs and Cosmetics Act, 1940 by the petitioner, Nicholas Piramal India Ltd., accused No. 5 in the complaint lodged by the respondent.
Details of the Judgment:
1. The petitioner, Nicholas Piramal India Ltd., sought quashing of the summoning order dated 18.12.2003, based on the complaint lodged by the respondent under Section 18(a)(i) read with Section 27(c) of the Drugs and Cosmetics Act, 1940.
2. A sample of a drug named Erythromycin Estolate Oral Suspension USP was collected on 21.9.2000, and upon analysis, it was found to be not of standard quality.
3. The manufacturing firm disputed the findings and requested re-testing, which again confirmed the substandard quality of the drug.
4. Investigation revealed that the drug was manufactured by M/s. Biodeal Laboratories for M/s. Rhone-Poulene (India) Ltd., which was later amalgamated with Nicholas Piramal India Ltd.
5. The Metropolitan Magistrate summoned several accused persons, including Nicholas Piramal India Ltd., based on the complaint.
6. The petitioner argued that it cannot be prosecuted for the offence committed by the transferor company, M/s. Rhone-Poulene (India) Ltd., due to the amalgamation.
7. The State contended that the petitioner is liable as it took over all assets and liabilities of the transferor company, supported by a clause in the scheme of arrangement between the companies.
8. Legal principles were cited, emphasizing the separate legal entity of a company and the consequences of amalgamation on liabilities and prosecutions.
9. The court held that upon amalgamation, the transferor company ceases to exist, and the entity evolved post-amalgamation cannot be prosecuted for offences of the transferor company.
10. Considering the timeline and legal implications of the amalgamation, the court quashed the summoning order dated 18.12.2003 against the petitioner.
11. The court concluded that the petitioner, having come into existence after the date of the alleged offence, cannot be prosecuted for the said offence.
This summary provides a detailed overview of the judgment, highlighting the key legal arguments and decisions made by the court in the case.
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2007 (8) TMI 797
Issues involved: Reversion of petitioners due to lack of recognized qualifications for promotion.
Summary:
Issue 1: Reversion due to lack of recognized qualifications
The petitioners were reverted to the post of LDC based on the order dated 18.11.1999, as they did not possess the required recognized qualifications at the time of promotion. This reversion was in accordance with the judgment of the Larger Bench of the court in the case of Shankar Lal Verma & 13 Ors. v. The Rajasthan State Electricity Board (1999 (1) WLC (Raj.) 1). The Larger Bench clarified that the qualification of 'Prathma' could not be considered equivalent to Secondary qualification after the withdrawal of recognition of 'Prathma' by the State Government from 1.4.1985. It was noted that if vacancies existed before 1.4.1985 and employees had obtained 'Prathma' qualification by that date, they could be eligible for promotion or appointment to such vacancies from years prior to 1.4.1985. In this case, promotions were made for the year 1995-96 when 'Prathma' qualification was not recognized by the State Government. Considering the facts and circumstances, the court found no basis for further intervention and dismissed the writ petition for lack of merit.
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2007 (8) TMI 796
Issues involved: Petition under Article 32 seeking ban on slaughter of cows, buffaloes, horses, and chameleons.
The petition sought a writ of mandamus u/s Article 32 to direct a total ban on slaughter of cows, buffaloes, horses, and chameleons, citing religious sentiments and constitutional commitments. The Court noted that such a ban falls under the purview of legislative decision-making and cannot be imposed by the judiciary. Reference was made to previous judgments emphasizing that Parliament holds the sovereign power to enact laws, and courts cannot compel the legislature to pass specific legislation. The Court concluded that it cannot provide the requested relief through the writ petition, leading to its dismissal.
In this judgment, the Supreme Court of India addressed a petition seeking a ban on the slaughter of certain animals based on religious beliefs and constitutional considerations. The Court clarified that decisions regarding such bans are within the legislative domain and cannot be mandated by the judiciary. Emphasizing the principle that Parliament holds the authority to enact laws, the Court highlighted that it cannot direct the legislature to pass specific legislation. As a result, the petition was dismissed as the Court found itself unable to grant the requested relief through the writ petition filed under Article 32 of the Constitution.
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2007 (8) TMI 795
Issues involved: Confiscation of fresh Ginger brought from Nepal, legality of confiscation and penalty u/s 111 of Customs Act 1962, relevance of hearsay evidence, applicability of Section 123 of Customs Act 1962, ownership of goods and truck.
Confiscation of fresh Ginger: The Customs Officers intercepted a truck loaded with fresh Ginger brought from Nepal illegally. A show cause notice was issued proposing confiscation of the Ginger and the truck under Section 111 of Customs Act 1962. The adjudicating authority confiscated the goods, imposed redemption fine, and penalties on individuals. The Commissioner (Appeals) reduced the penalties.
Legality of confiscation and penalty: The appellants argued that the seized Ginger was non-notified under Section 123 of the Customs Act 1962. They contended that the confiscation was based on hearsay evidence and cited a Tribunal decision to support their claim. They also referred to a Public Notice clarifying that fresh Ginger from Nepal can be freely imported into India. The appellants claimed that the Ginger was of Indian origin with accompanying documents, making the confiscation and penalties unlawful.
Relevance of hearsay evidence: The Tribunal noted that the case relied heavily on the driver's hearsay statement about the Ginger being brought from Nepal. Citing a previous case, the Tribunal emphasized that hearsay evidence without corroboration should not be accepted. The appellants' reply indicated that the Ginger was locally cultivated, supported by a representation from Udyog Vyapar Mandal. The seized goods were accompanied by documents of the owner, not falling under Section 123 of the Customs Act. No evidence of smuggling was presented by the revenue. The authorities did not contest that Ginger was commonly cultivated in the area. Consequently, the confiscation of Ginger and the trucks was deemed unsustainable, leading to the setting aside of the impugned orders and allowing the appeals with consequential relief.
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2007 (8) TMI 794
Issues Involved:
1. Legality of the detention under COFEPOSA.
2. Validity of the notice u/s 6(1) of SAFEMA.
3. Whether non-supply of reasons with the notice u/s 6(1) of SAFEMA vitiates the proceedings.
Summary:
1. Legality of the detention under COFEPOSA:
The respondent No. 1 was detained on December 19, 1974, under MISA, and the detention was continued u/s 3(1) of COFEPOSA for illegal dealings in foreign exchange. The respondent challenged the detention order but was unsuccessful, and his habeas corpus petition was dismissed. The learned single Judge upheld the Division Bench's decision, affirming the legality of the detention order.
2. Validity of the notice u/s 6(1) of SAFEMA:
While in custody, the respondent No. 1 was served with a notice dated March 4, 1977, u/s 6(1) of SAFEMA. The respondent's wife replied on his behalf, and after his release, the respondent reiterated the same contentions. The competent authority issued a reasoned order on November 27, 1989, which was partly upheld by the Appellate Authority. The respondent filed a writ petition challenging the SAFEMA notice and the subsequent orders. The learned single Judge quashed the notice and consequential orders due to the initial non-supply of reasons.
3. Non-supply of reasons with the notice u/s 6(1) of SAFEMA:
The Union of India appealed, arguing that the reasons were eventually supplied, and the respondent was given adequate opportunity to defend himself. The Court noted that the provisions of Section 6(1) of SAFEMA do not specifically require the supply of reasons with the notice. The delayed supply of reasons did not vitiate the proceedings as the respondent was afforded opportunities to respond and defend himself. The Court found that the nexus between the properties and the alleged illegal activities was established, and the respondent failed to provide a plausible explanation for the remaining items.
Conclusion:
The appeal was allowed, and the judgment of the learned single Judge quashing the show cause notice and consequential orders was set aside. The Court held that the delayed supply of reasons did not invalidate the proceedings, and the respondent's properties were rightly confiscated u/s 6(1) of SAFEMA. The order of detention under COFEPOSA was upheld as lawful.
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2007 (8) TMI 793
Issues involved:
The issue involves seeking a direction for mutation in revenue record u/s equitable mortgage by deposit of title-deeds without registration fees and stamp duty.
Judgment Details:
Issue 1: Mutation in Revenue Record
The petitioners sought mutation for equitable mortgage by deposit of title-deeds without registration fees. The respondents argued that such a mortgage is compulsorily registrable u/s 17(1)(c) of the Registration Act. The court held that an equitable mortgage is created by mere deposit of title-deeds, not requiring registration. The petitioners' act of depositing title-deeds was sufficient to create a mortgage u/s 58(f) of the Transfer of Property Act.
Issue 2: Legal Precedents
Legal precedents were cited, including Rachpal Maharaj v. Bhagwandas Daruka and State Bank of Mysore v. S.M. Essence Distilleries Pvt. Ltd. The court concluded that a memorandum confirming an equitable mortgage does not require registration and does not extinguish the original equitable mortgage created by deposit of title-deeds.
Issue 3: Government Regulations
The State argued that deposit of title-deeds/equitable mortgage is compulsorily registrable. However, the court held that such mortgages are created by deposit of title-deeds, not through a written instrument, and therefore, do not require registration.
Conclusion:
The court allowed the petition, directing the respondents to enter mutation in favor of the bank for the properties equitably mortgaged by deposit of title-deeds. The judgment clarified that a mortgage created by a simple deposit of title-deeds does not require compulsory registration.
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9911796707
