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2009 (10) TMI 964
Issues Involved:
1. Environmental pollution of the Noyyal River.
2. Compliance with pollution control measures by dyeing and bleaching units.
3. Imposition of fines and compensatory expenses.
4. Implementation of Zero Liquid Discharge (ZLD) and Reverse Osmosis (RO) systems.
5. Responsibility for cleaning Orathapalayam Dam and Noyyal River.
6. Compensation to affected individuals and families.
7. Role and actions of Tamil Nadu Pollution Control Board.
8. Judicial oversight and directions.
Detailed Analysis:
1. Environmental Pollution of the Noyyal River:
The case arose from a Public Interest Litigation filed by the Noyyal River Ayacutdars Protection Association seeking directions for the preservation of ecology and to keep the Noyyal River free from pollution. The association claimed that numerous industries in the Tirupur area were discharging industrial effluents into the river, making the water unfit for irrigation and potable use.
2. Compliance with Pollution Control Measures by Dyeing and Bleaching Units:
The High Court had previously issued directions to the Tamil Nadu Pollution Control Board to enforce pollution control measures and environmental laws. The dyeing and bleaching units were directed to contribute to the expenses of cleaning the Orathapalayam Dam. However, the units sought extensions and failed to fully comply with the orders, leading to further judicial intervention.
3. Imposition of Fines and Compensatory Expenses:
The High Court imposed fines on the dyeing units on a pro-rata basis for discharging effluents, calculated at rates of six, eight, and ten paise per liter over specified periods. This was contested by the appellants, who argued that the fines were not based on scientific data. However, the fines were based on the Expert Committee's report and the principle of "polluter-pays."
4. Implementation of Zero Liquid Discharge (ZLD) and Reverse Osmosis (RO) Systems:
The High Court directed the dyeing units to achieve ZLD of trade effluents by installing RO systems. The units were required to deposit a percentage of the project cost for these installations. The Monitoring Committee reported that while some progress had been made, full compliance had not been achieved.
5. Responsibility for Cleaning Orathapalayam Dam and Noyyal River:
The High Court directed the respondents to deposit significant sums towards cleaning and desilting operations of the Orathapalayam Dam and the Noyyal River. The Public Works Department was tasked with continuing these operations, and the Pollution Control Board was to provide infrastructure and technical expertise for waste removal.
6. Compensation to Affected Individuals and Families:
The Expert Committee identified 28,596 individuals affected by the pollution and assessed compensation totaling Rs. 24,79,98,548 for the period from 28.8.1996 to 31.12.2004. The High Court directed the respondents to deposit the remaining compensation amount and an ad-hoc compensation for subsequent years.
7. Role and Actions of Tamil Nadu Pollution Control Board:
The Pollution Control Board inspected the CETPs and reported improvements but noted that full compliance had not been achieved. The Board was directed to ensure that no further pollution occurred and to provide periodic reports to the court.
8. Judicial Oversight and Directions:
The Supreme Court stayed the High Court's order to close the industries but directed the appellants to deposit Rs. 25 crores and ensure compliance with pollution control measures. The court emphasized the principles of "polluter-pays" and "precautionary principle," mandating that the industries bear the cost of reversing the ecological damage and compensating affected individuals.
Conclusion:
The appeals were disposed of with the direction that the dyeing and bleaching units ensure full compliance with the High Court's orders within three months, including making CETPs functional, paying the balance amount for cleaning operations, and compensating affected individuals. The Pollution Control Board was tasked with ensuring strict adherence to statutory provisions to prevent further pollution.
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2009 (10) TMI 963
Application seeking amendment under Order VI Rule 17 - consequent to the subsequent Urban Land (Ceiling & Regulation) Repeal Act, 1999 - respondents are to be treated as trespassers and unauthorized occupants of the building - Suit Originally framed, only for refund of sale consideration and alternatively for possession - recommendation of Justice Malimath Committee - respondents aggrieved by the order of the trial court for allowing application preferred a writ petition - appellant had originally sought possession of the entire property from the respondents, by giving up such a claim, now the appellant is trying to introduce a new case which would certainly affect the rights of the respondents when the appellant had earlier requested the court to pass a decree for possession of the entire property -
High Court held that any such amendment which changes the entire character of the plaint cannot be permitted and that too after a lapse of four years after the institution of the suit. The High Court has set aside the order of the trial court which allowed the amendment under Order VI Rule 17 CPC.
HELD THAT:- In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.
It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book on Code of Civil Procedure (2005 Edition) incorporated this information while dealing with the object of amendment.
The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases.
Dismissing the appeal and confirming the order of the High Court, this Court observed that the discretionary power of amendment was not exercised by the High Court on wrong principles. There was merely a defect in the pleading which was removed by the amendment. The quality and quantity of the reliefs sought remained the same. Since the amendment did not introduce a new case, the defendant was not taken by surprise.
The Court further observed that since there was no addition to the averments or relief, it was not possible to uphold the contention of the plaintiff that by conversion of written statement into a plaint in a cross-suit, a fresh claim was made or a new relief was sought. To the facts of the present case, therefore, the decisions holding that amendments could not ordinarily be allowed beyond the period of limitation and the limited exceptions to that rule have no application.
WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY:- The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
NO PREJUDICE OR INJUSTICE TO OTHER PARTY:- The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.
The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.
COSTS:- The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs.
We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
When we apply these parameters to the present case, then the application for amendment deserves to be dismissed with costs of ₹ 1,00,000/- (Rupees One Lakh) because the respondents were compelled to oppose the amendment application before different Courts. This appeal being devoid of any merit is accordingly dismissed with costs.
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2009 (10) TMI 962
Issues involved: Interpretation of the term 'input service' u/s Rule 2(1) of Cenvat Credit Rules, 2004; Requirement of maintaining greenery on factory premises; Inclusion of expenses towards garden maintenance in cost of finished products.
Interpretation of 'input service' under Rule 2(1) of Cenvat Credit Rules, 2004: The appellant contended that the service in question falls under the inclusive part of the definition of 'input service'. However, the Tribunal found that the service did not meet the requirements of the substantive part of the definition, implying that services claiming inclusion must satisfy the legal requirements of the main part. The appellant's grievance on this issue was deemed unfounded.
Requirement of maintaining greenery on factory premises: The appellant argued that they were obligated to maintain greenery on 33% of the factory premises as per a consent granted by the Maharashtra Pollution Control Board. This contention was considered irrelevant since the service in question did not meet the main part of the 'input service' definition.
Inclusion of garden maintenance expenses in cost of finished products: The appellant claimed that expenses for garden maintenance were part of the total cost of finished products on which Central Excise duty was discharged. However, this aspect was also deemed irrelevant based on the findings in the final order. The Tribunal did not delve into penalty-related issues as they were remanded to the original authority for consideration.
Conclusion: After reviewing the submissions, the Tribunal found no error, let alone an apparent error, in the final order. The application was dismissed as the grievances raised were considered irrelevant in light of the main part of the 'input service' definition and the findings in the final order.
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2009 (10) TMI 961
Issues involved: Appeal against dismissal of petition for quashing criminal proceedings under Sections 406, 498A read with 114 IPC pending before trial court.
Issue 1: Quashing of criminal proceedings
The appellant, husband, and wife were accused of unreasonable dowry demands and misbehavior by their daughter-in-law. The complaint was filed after nine years of marriage, alleging mistreatment and demand for dowry. The High Court refused to quash the complaint, stating it had sufficient material to proceed. The appellant's counsel argued that the complaint was vague and lacked specific allegations against the appellants. The Supreme Court observed that the complaint primarily targeted the deceased husband, with vague references to the appellants. The court emphasized the need for specific details of offenses committed by each accused. As the deceased husband was the main focus of the allegations and had already passed away, continuing the prosecution against the elderly parents would be an abuse of process. The court set aside the High Court judgment and quashed the order of cognizance under Section 482 Cr.P.C.
Issue 2: Lack of specific allegations
The complaint lacked specific details regarding the alleged offenses by the appellants. It failed to specify the role played by each accused in the offenses. The court noted that the complaint did not clearly attribute any offense under Section 498A IPC to the present appellants. Moreover, the absence of crucial details such as dates of events and specific actions by the appellants weakened the case against them. The court highlighted that the complaint's vagueness made it unjust to continue the prosecution against the elderly parents based on unclear accusations.
Separate Judgment:
The Supreme Court, comprising V.S. Sirpurkar and Deepak Verma, JJ., allowed the appeal and quashed the criminal proceedings against the appellants under Section 482 Cr.P.C.
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2009 (10) TMI 960
Issues Involved:
1. Proprietorship of the Trademark 'PRINCE'
2. Suppression of Material Facts by the Plaintiff
3. Prior Use of the Trademark by the Defendants
4. Equitable Relief of Injunction
5. Vested Rights under the Trademarks Act
Issue-wise Detailed Analysis:
1. Proprietorship of the Trademark 'PRINCE':
The plaintiff claimed that the trademark 'PRINCE' had been used since April 2001 and was registered on 27.09.2004. The defendants contested this, asserting that they had adopted the trademark/trade name 'PRINCE Auto Industries' in 1998. The court noted that the defendants' use of the business name 'PRINCE Auto Industries' predates the plaintiff's adoption of the trademark, thus raising questions about the plaintiff's claim to proprietorship.
2. Suppression of Material Facts by the Plaintiff:
The court found that the plaintiff suppressed material facts, particularly the existence of Stockiest Agreements dated 19.08.2002 and 20.09.2002, which appointed the plaintiff as the authorized stockiest of the defendants. This suppression was deemed deliberate and material, as it concealed the true nature of the relationship between the parties and the defendants' prior use of the trademark 'PRINCE'.
3. Prior Use of the Trademark by the Defendants:
The defendants provided evidence of prior use of the trademark 'PRINCE' through sales invoices, Sales Tax Registration Certificates, and Sales Tax Quarterly Returns dating back to 1999. The court found this evidence credible and indicative of the defendants' prior adoption and use of the mark 'PRINCE' in relation to auto parts and accessories.
4. Equitable Relief of Injunction:
The court emphasized that equitable relief, such as an injunction, requires the plaintiff to come with clean hands. Given the plaintiff's suppression of material facts and the defendants' prior use of the trademark, the court held that the plaintiff was not entitled to the equitable relief of an injunction. The ex parte ad interim injunction granted to the plaintiff was vacated.
5. Vested Rights under the Trademarks Act:
The court referred to Section 34 of the Trademarks Act, which protects the vested rights of prior users of a trademark. The defendants' prior use of the trademark 'PRINCE' since 1998 was recognized, and the court held that this vested right could not be interfered with by the plaintiff's subsequent registration of the trademark.
Conclusion:
The court vacated the interim orders dated 02.06.2006 and directed the defendants to maintain accounts of profits earned under the trademark 'PRINCE' and file them quarterly. The defendants were also ordered to publish public notices informing prospective buyers that their goods marketed under the trademark 'PRINCE' had no connection with the plaintiff's goods. The case was listed for further proceedings, including framing of issues and recording of evidence.
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2009 (10) TMI 959
Issues Involved:
1. Validity of the full and final settlement voucher.
2. Interpretation of the arbitration clause.
3. Nature and terms of the insurance policy.
4. Request for fresh survey report.
5. Award of interest and costs.
Detailed Analysis:
1. Validity of the Full and Final Settlement Voucher:
The arbitrators held that the full and final settlement voucher was not signed voluntarily by the respondent but under duress. The respondent had written a letter on 18.12.1998, immediately after signing the voucher, stating that it was signed under economic duress. The arbitrators found sufficient evidence that the respondent did not voluntarily issue the discharge voucher dated 17 December 1998. The evidence included testimonies and letters indicating that the respondent was coerced into signing the voucher to receive the admitted amount. The court upheld this finding, noting that the objector's counsel conceded that payment would not have been released without the discharge voucher.
2. Interpretation of the Arbitration Clause:
The arbitration clause was interpreted to include the determination of whether there was a full and final settlement. The clause stated, "If any difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of an arbitrator." The court found this interpretation valid, referencing the Supreme Court's decision in National Insurance Co. Ltd. v. Boghara Polyfab Ltd., which supported the arbitrators' jurisdiction to determine the issue of full and final settlement.
3. Nature and Terms of the Insurance Policy:
The policy in question was a Fire Declaration Policy, but the arbitrators held that the nomenclature was immaterial. They considered the terms of the contract, contemporaneous correspondence, and the parties' actions. The respondent had made monthly declarations of the value of stocks at different locations, which were accepted by the objector without objection. The arbitrators found that the sub-limits for each location changed as per these monthly declarations. The court upheld this finding, noting that the conduct of the parties and the contemporaneous correspondence supported the arbitrators' interpretation.
4. Request for Fresh Survey Report:
The objector's request to refer the matter back to the surveyors for fresh valuation was refused. The arbitrators found that the objector had sufficient opportunity to address the valuation issue from the outset. The court agreed, noting that the objector failed to provide specific grounds for doubting the value of the stocks declared by the respondent. The court cited the Supreme Court's decision in New India Assurance Co. Ltd. v. Pradeep Kumar, which held that a surveyor's report is not conclusive and can be departed from.
5. Award of Interest and Costs:
The arbitrators awarded interest at 15% per annum from 11.12.1998 till the date of the award and 12% per annum from the date of the award till payment. The court reduced the interest rate to 9%, citing the Supreme Court's guidance on the liberalization of interest rates. Regarding costs, the court directed the respondent to file an affidavit detailing the legal costs incurred. The court emphasized that actual costs should be awarded, considering the financial capacity of the parties and the value of the claims involved.
Conclusion:
The objection petition was dismissed, with the court upholding the arbitrators' findings on the validity of the settlement voucher, the interpretation of the arbitration clause, the terms of the insurance policy, and the refusal to refer the matter for a fresh survey report. The interest rate was reduced to 9%, and the respondent was directed to file an affidavit for the award of actual costs.
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2009 (10) TMI 958
Issues Involved:
1. Adequacy of information provided by the University.
2. Confidentiality and disclosure of information u/s 8(1)(e) and 8(1)(j) of the RTI Act.
3. Necessity to follow the procedure u/s 11 of the RTI Act.
Summary:
1. Adequacy of Information Provided by the University:
The petitioners, Public Information Officer and Appellate Authority of Calicut University, challenged the order passed by the State Information Commission (SIC) on an appeal filed by the 2nd respondent. The 2nd respondent sought information regarding the re-valuation of an answer paper of Kumari P. Deepa. The University initially responded that the information could only be provided with Deepa's consent due to confidentiality. Dissatisfied, the 2nd respondent appealed, and the Appellate Authority provided detailed responses to the queries. However, the SIC directed the University to provide more specific information. The Court found that the information provided by the University was adequate and sufficient, noting that the University handles a large volume of answer scripts and it is not feasible to hold a single officer responsible for any loss.
2. Confidentiality and Disclosure of Information u/s 8(1)(e) and 8(1)(j) of the RTI Act:
The University argued that the details of the valuer and custodian of the answer scripts are confidential and exempt from disclosure u/s 8(1)(e) and 8(1)(j) of the RTI Act. The Court agreed, stating that the University holds a fiduciary relationship with the valuer, and such information can only be disclosed if there is a larger public interest. Additionally, the information qualifies as personal information, and its disclosure would cause an unwarranted invasion of privacy unless justified by a larger public interest.
3. Necessity to Follow the Procedure u/s 11 of the RTI Act:
The Court emphasized the need to follow the procedure u/s 11 of the RTI Act when dealing with third-party information. The SIC did not issue a notice to Kumari Deepa, whose information was sought, thus failing to follow the required procedure. The Court held that the SIC should have considered the views of the third party before ordering the disclosure of information.
Judgment:
The writ petition was allowed, and the SIC's order (Ext.P6) was set aside. The Court declared that the reply given by the Appellate Authority of Calicut University (Ext.P4) was adequate and sufficient. There was no order as to costs.
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2009 (10) TMI 957
Issues involved:
Whether the appellants are persons aggrieved u/s 15T of the Securities and Exchange Board of India Act, 1992.
Issue 1: Appellants' status as persons aggrieved
The primary issue in this appeal was whether the appellants, who are shareholders of a public limited company, can be considered as "persons aggrieved" under Section 15T of the Act. The Securities and Exchange Board of India (SEBI) had ordered investigations into trading activities involving the company's shares and issued directions to certain entities, including Respondents No. 2 to 5. Subsequently, adjudication proceedings were initiated against these entities. The appellants challenged the revocation of earlier directions restraining Respondents No. 2 to 5 from dealing in the company's shares.
The Tribunal, after considering the arguments, upheld the preliminary objection raised by SEBI. It emphasized that the term "person aggrieved" has a specific legal connotation, as established in previous court judgments. The Tribunal applied tests from the case of Jasbhai Motibhai Desai v. Roshan Kumar to determine if the appellants had suffered a legal wrong or injury directly affecting their interests. It concluded that the appellants, as small shareholders, did not have a legal grievance against the actions taken by SEBI regarding the erring market players. The Tribunal found that the appellants were attempting to interfere in regulatory matters that were within the exclusive domain of SEBI, making them akin to meddlesome interlopers. Therefore, the appellants were not considered persons aggrieved by the impugned order.
The Tribunal also addressed judgments cited by the appellants, including Bar Council of Maharashtra v. M.V. Dabholkar, to argue for a broader interpretation of "person aggrieved." However, it found that these cases did not support the appellants' position, as the impugned order did not prejudicially affect their interests. A comparison was made with a previous case involving a shareholder's complaint about a takeover, where the appellant was deemed a person aggrieved due to a violation of the takeover code affecting their shareholder rights. In contrast, the present case did not involve a similar deprivation of rights for the appellants. Ultimately, the Tribunal upheld SEBI's objection and ruled that the appeal was not maintainable due to the appellants' lack of aggrieved status.
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2009 (10) TMI 956
Issues Involved:
1. Claim of Flowmore for the balance price payable.
2. Refund claim with respect to the bank guarantees encashed by NTPC.
3. The claim of NTPC for liquidated damages.
4. Respective claims of the parties for interest.
Issue-wise Detailed Analysis:
1. Claim of Flowmore for the Balance Price Payable:
The majority award entitled Flowmore to the balance price of 10% amounting to Rs. 21,63,105/-. The arbitrators found that Flowmore had performed the contract and NTPC had no complaints regarding the pumps. The contract's performance tests were conducted satisfactorily, and NTPC had accepted and retained the equipment without rejection. The arbitrators referenced the Sale of Goods Act, 1930, and concluded that NTPC could not retain the goods without paying the balance price. However, an adjustment of Rs. 2,30,910/- was made for an unadjusted advance lying with Flowmore, reducing the payable amount.
2. Refund Claim with Respect to the Bank Guarantees Encashed by NTPC:
The arbitrators held that Flowmore was entitled to the amounts of the bank guarantees encashed by NTPC as NTPC's counterclaims, including liquidated damages, were dismissed. The court found no fault with this part of the award, as the amounts encashed were ultimately towards the net amount due under the contract.
3. The Claim of NTPC for Liquidated Damages:
The court recognized that Flowmore was guilty of breach of contract and delay in performance, thus entitling NTPC to liquidated damages without proof of actual loss, as supported by the Supreme Court's judgment in ONGC vs. Saw Pipes Limited. However, the arbitrators erroneously dismissed NTPC's claim for liquidated damages as time-barred, which the court found unreasonable and perverse. Consequently, NTPC was entitled to Rs. 5,39,100/- for liquidated damages.
4. Respective Claims of the Parties for Interest:
The court decided to award a uniform rate of 9% per annum simple interest to Flowmore against NTPC on the net amount granted by the award and modified by the judgment. This decision was influenced by recent Supreme Court judgments emphasizing lower interest rates in the changed economic scenario. The net amount due to Flowmore from NTPC was Rs. 13,93,095/- plus Rs. 19,35,826/- from bank guarantees.
Additional Claims and Adjustments:
- NTPC's claim for the cost of spares was denied as NTPC refused to pay Flowmore for the spares, and Flowmore was willing to supply them if payment was made.
- NTPC's claim for risk and purchase costs of pumps from Johnston was rejected as the purchased pumps did not conform to the original contract's specifications (S.S. impellers) and Flowmore was not given the opportunity to supply the substituted items.
- NTPC's additional claim of Rs. 76,27,631/- was reduced to Rs. 34,85,572/- as the arbitrators found no prior claim before arbitration proceedings commenced.
Costs:
The court directed Flowmore to file an affidavit detailing the costs incurred for the legal proceedings, supported by certificates from their advocates. NTPC was ordered to pay 75% of the certified costs to Flowmore.
Final Order:
The objection petition was disposed of, and the award dated 19.11.1996 was made the rule of the court, subject to modifications. The net amount awarded to Flowmore was Rs. 13,93,095/- plus Rs. 19,35,826/- with 9% per annum simple interest until actual payment. The suit was disposed of accordingly.
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2009 (10) TMI 955
Issues Involved:
1. Bonafide requirement of the landlord.
2. Comparative hardship of the parties.
3. Effect of subsequent developments on the case.
Summary:
Bonafide Requirement of the Landlord:
The landlord filed an application u/s 21(1)(a) of the U.P. Act No. 13 of 1972 for the release of a shop for his son's Chartered Accountancy office. The Prescribed Authority rejected the application, stating the landlord had sufficient space on the first floor. The Additional District Judge allowed the appeal, recognizing the landlord's need for the shop. The High Court remanded the case to consider subsequent developments, such as the death of the landlord's parents and the acquisition of additional property.
Comparative Hardship of the Parties:
The Prescribed Authority did not consider comparative hardship, as it found no bonafide requirement. The Appellate Court, however, held that the tenant would not face much hardship if the shop was released, given the tenant's alternative space. The High Court remanded the case to reassess comparative hardship in light of new developments.
Effect of Subsequent Developments:
The High Court set aside the Appellate Court's decision, citing subsequent developments like the death of the landlord's parents and the acquisition of additional property. The Supreme Court noted that subsequent developments are relevant and need to be examined through evidence. The Court emphasized that the litigation, pending for 15 years, should not be prolonged further.
Supreme Court's Decision:
The Supreme Court held that the High Court should have ordered a limited remand to the Appellate Court to consider the effect of subsequent developments on the bonafide requirement and comparative hardship. The High Court should keep the writ petition pending and decide it after receiving evidence and findings from the Appellate Court. The landlord is allowed to amend the original release application to include the requirement of his grown-up children.
Conclusion:
The Supreme Court set aside the High Court's judgment, restored the writ petition, and directed the High Court to decide the case within six months, considering the subsequent developments and without unnecessary adjournments. The appeal was allowed to the extent indicated, with no order as to costs.
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2009 (10) TMI 954
Offence punishable u/s 304B and u/s 498A IPC - Case of prosecution that accused Nos. 1 to 3 had been torturing the deceased Mangayarkarasi by demanding a car and money - wife of accused committed suicide due to tortures - whether it was dowry demand case? - Appellant Arulvelu has been convicted and sentenced to seven years rigorous imprisonment u/s 304B of IPC and further convicted u/s 498A IPC and sentenced to rigorous imprisonment for a period of two years and to pay a fine of ₹ 1,000/-, in default to suffer three months rigorous imprisonment - whether the appellant is guilty for compelling the deceased to commit suicide? - According to P.W.1 the father of the deceased, his daughter committed suicide because he could not give gold and a car as agreed before her marriage. The accused persons started torturing and harassing the deceased which ultimately led to suicide - conflicting judgments of the Trial Court and the High Court - High Court has reversed the judgment of acquittal passed by the Additional Assistant Sessions Judge, Periyar District in Sessions Case and convicted the accused persons.
HELD THAT:- In our considered opinion, the approach of the High Court in the impugned judgment is not in consonance with the settled principles of criminal jurisprudence. The High Court while reversing the judgment of the trial court observed that "in all probabilities, I am inclined to hold that there was demand of dowry and the deceased was harassed by the first accused and therefore, she committed suicide."
In criminal cases the conviction can be sustained only when there is clear evidence beyond reasonable doubt. The accused cannot be convicted on the ground that in all probabilities the accused may have committed the crime. The approach of the High Court is wholly fallacious and unsustainable in law.
Whether the view which has been taken by the trial court was a possible or a plausible view? - We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct. The trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse.
We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal.
The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. and Ors. v. Hanuman Prasad (Dead) through LRs. and Ors. [2000 (11) TMI 1254 - SUPREME COURT OF INDIA] this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
The expression "perverse" has been defined by various dictionaries like Oxford Advanced Learner's Dictionary of Current English Sixth Edition - Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
Longman Dictionary of Contemporary English - International Edition - Deliberately departing from what is normal and reasonable. New Oxford Dictionary of English - 1998 Edition - Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. etc.
We have re-examined the entire case because of the conflicting judgments of the Trial Court and the High Court. On careful marshalling of the entire evidence and the documents on record, we arrive at the conclusion that the view taken by the trial court is a possible and plausible view. The judgment of the trial court cannot be termed as perverse.
The High Court ought not to have substituted the same by its own possible view. The impugned judgment of the High Court cannot stand the scrutiny of the well settled legal position which has been crystallized for more than 80 years since the case of Sheo Swarup [1934 (7) TMI 17 - PRIVY COUNCIL]. In the facts and circumstances of this case, we are constrained to set aside the impugned judgment of the High Court.
Consequently, these appeals filed by the appellants are allowed. The impugned judgment of the High Court set aside and that of the trial court is restored.
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2009 (10) TMI 953
Issues Involved:
1. Constitutionality and legality of the petitioner's arrest under Section 13 of the Central Excise Act, 1944.
2. Validity of the proceedings in C.O. No. 1 of 2009 initiated without a formal complaint or FIR.
3. Legitimacy of the order dated 18.5.2009 directing the petitioner to authenticate printouts from a seized laptop and the implications of non-compliance on the petitioner's bail bond.
Detailed Analysis:
1. Constitutionality and legality of the petitioner's arrest under Section 13 of the Central Excise Act, 1944:
The petitioner challenged his arrest by invoking Article 226 of the Constitution of India, arguing that the arrest was unconstitutional and unlawful as the offences under Section 9 of the Central Excise Act are non-cognizable in terms of Section 9A. The petitioner contended that without a warrant of arrest, the arrest was not competent.
The court analyzed the provisions of the Central Excise Act, particularly Sections 9, 9A, 13, 18, and 21. It was concluded that Section 13 empowers Central Excise Officers to arrest any person they believe is liable to punishment under the Act, and this power is not curtailed by Section 9A. Section 18 relates to the procedure for arrests and searches, ensuring compliance with the Code of Criminal Procedure but does not limit the power of arrest conferred under Section 13. The court emphasized that the legislative intent was to empower Central Excise Officers to arrest without a warrant to prevent evasion of duty and ensure compliance with the Act. Therefore, the arrest of the petitioner by the Central Excise Officer was held to be constitutional and lawful.
2. Validity of the proceedings in C.O. No. 1 of 2009 initiated without a formal complaint or FIR:
The petitioner sought to quash the proceedings in C.O. No. 1 of 2009, arguing that they were not initiated on a formal complaint or FIR as required under Section 2(d) of the Code of Criminal Procedure. The court examined the nature of the application that led to the initiation of the case and found it to be an offence report rather than a formal complaint, indicating that the investigation was still ongoing.
The court referred to the case of Directorate of Enforcement vs. Deepak Mahajan, where it was held that the detention authorized by a Magistrate under similar provisions in other Acts was valid. The court concluded that the proceedings were legitimate as they were based on an offence report, and the investigation was not yet complete. Thus, the continuation of the proceedings did not constitute an abuse of the process of law.
3. Legitimacy of the order dated 18.5.2009 directing the petitioner to authenticate printouts from a seized laptop and the implications of non-compliance on the petitioner's bail bond:
The petitioner challenged the order dated 18.5.2009, claiming it violated Article 20(3) of the Constitution of India, which protects against self-incrimination. The order directed the petitioner to authenticate printouts from a laptop seized during the investigation, with a threat of bail bond cancellation for non-compliance.
The court analyzed whether the authentication of documents would amount to self-incrimination. It was noted that the printouts were taken under the court's order in the presence of both parties and required authentication to avoid further complications. The court referred to the case of State of Bombay vs. Kathi Kalu Oghad, which clarified that self-incriminatory testimony must, by itself, tend to incriminate the accused. The court concluded that simple authentication of documents does not constitute self-incriminatory testimony and thus does not violate Article 20(3).
However, the court found that the part of the order threatening to cancel the bail bond for non-compliance was not sustainable, as the consequences for non-compliance were already provided under Section 14 of the Central Excise Act. Therefore, that part of the order was quashed.
Conclusion:
The court held that the Central Excise Officer acted within jurisdiction in arresting the petitioner and that the proceedings in C.O. No. 1 of 2009 were valid. The order dated 18.5.2009 was upheld, except for the part threatening bail bond cancellation, which was quashed. The application was allowed in part to the extent indicated above.
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2009 (10) TMI 952
Issues involved: Interpretation of arbitration award, validity of signatures on document Ex.D-8, application of Section 34 of the Arbitration and Conciliation Act, 1996, challenge under Section 37 of the Act.
Interpretation of Arbitration Award: The appellant and respondent entered into an agreement regarding the sale of cement. Disputes arose, leading to arbitration. The arbitrator rejected the claimant-respondent's plea regarding the signatures on document Ex.D-8, stating they were not binding due to a mistake by the respondent. The arbitrator held the appellant liable to pay the respondent a sum of Rs. 49.90 lakhs with interest. Objections under Section 34 of the Act were filed, and the Addl. District Judge ruled in favor of the appellant, awarding Rs. 62,000 with interest. The High Court was approached under Section 37 of the Act.
Validity of Signatures on Document Ex.D-8: The Supreme Court noted that when a person signs a document, there is a presumption that they have read and understood it, unless there is proof of force or fraud. The Court emphasized that businessmen, being cautious with their money, would have carefully reviewed the document before signing. In this case, without any allegation of force or fraud, the Court found it hard to accept the respondent's claim that the document was signed under a mistake. The Court disagreed with the High Court's view on this matter, leading to the appeal being allowed, the High Court judgment being set aside, and the case being remanded for further proceedings.
Application of Section 34 of the Arbitration and Conciliation Act, 1996: The respondent had filed objections under Section 34 of the Act, which were considered by the Addl. District Judge. The Judge ruled in favor of the appellant, awarding a lesser amount compared to the arbitration award. This order was challenged before the High Court under Section 37 of the Act.
Challenge under Section 37 of the Act: The High Court judgment addressed the issue of the validity of the signatures on Ex.D-8. The Court noted that the arbitrator did not accept the claimant-respondent's argument regarding the nature of the signatures. The High Court considered whether the admission on the document was erroneous or conclusive proof. Ultimately, the Supreme Court disagreed with the High Court's decision on this matter, leading to the appeal being allowed and the case being remanded for further proceedings.
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2009 (10) TMI 951
Issues Involved:
1. Alleged oppressive allotment of shares.
2. Validity of share allotments without proper resolutions.
3. Dispute over management control and shareholding.
4. Allegations of abandonment and financial incapacity.
5. Genuineness of share certificates.
6. Relief and remedies for alleged oppression.
Detailed Analysis:
1. Alleged Oppressive Allotment of Shares:
The petitioners alleged that the OPA group reduced their shareholding percentage by allotting shares worth Rs. 75 lakhs to non-members on December 12, 2005, and further shares worth Rs. 1 crore on March 19, 2007, without proper resolutions. This was claimed to be an act of oppression to gain majority control. The Company Law Board (CLB) found that the allotments were made without passing resolutions under Section 81(1A) of the Companies Act, 1956, and thus were invalid. The RMS group had share application money of Rs. 21.8 lakhs, but no shares were allotted to them, which further indicated an oppressive act.
2. Validity of Share Allotments Without Proper Resolutions:
The respondents did not provide any evidence of resolutions passed under Section 81(1A) for the allotment of shares to non-members. The CLB noted that as a public company, rights shares could only be issued unless a resolution under Section 81(1A) was passed. The failure to follow this statutory requirement rendered the allotments invalid.
3. Dispute Over Management Control and Shareholding:
The RMS group contended that the OPA group was supposed to hold only 30% shares with joint management, while the OPA group claimed they were to gain full control. The CLB found no evidence of an agreement for the transfer of an additional 1.65 lakh shares beyond the initially transferred 3 lakh shares. The OPA group's claim of majority control was thus unfounded. The CLB also noted that the RMS group had not abandoned the company as they continued to hold shares, provided loans, and had share application money.
4. Allegations of Abandonment and Financial Incapacity:
The OPA group argued that the RMS group had abandoned the company due to financial incapacity and being on the defaulters list. However, the CLB found that the RMS group's continued financial involvement and shareholding indicated no abandonment. Being on the defaulters list did not debar the RMS group from management.
5. Genuineness of Share Certificates:
There was a dispute over the genuineness of share certificates, with both parties producing different sets of certificates. The CLB noted that determining the genuineness of the certificates was not necessary for the present proceedings as the RMS group's shareholding was already reflected in the register of members. The CLB suggested that any issues regarding the genuineness of the certificates could be resolved by the Debts Recovery Tribunal.
6. Relief and Remedies for Alleged Oppression:
The CLB held that the impugned allotments were acts of oppression and directed the company to convene a general meeting to elect directors based on the shareholding as of October 2003. The CLB appointed an independent chairman for the meeting and provided for the possibility of one group buying out the other's shares at a fair valuation determined by an independent valuer. The CLB emphasized that the relief should ensure fair treatment and prevent the wrongdoer from benefiting from their actions.
Conclusion:
The CLB found that the OPA group's actions in allotting shares without proper resolutions were oppressive and invalid. The RMS group had not abandoned the company and retained their rights as shareholders. The CLB directed a general meeting to reconstitute the board and provided for a fair valuation mechanism for share buyouts to resolve the dispute equitably.
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2009 (10) TMI 950
Issues Involved:
1. Validity of the assessment order u/s 143(3) due to non-service of notice u/s 143(2) within the prescribed time.
2. Legality of reopening the assessment u/s 148 after the Tribunal quashed the original assessment.
3. Applicability of the proviso to section 147 in the context of the reopening of the assessment.
Summary:
1. Validity of the Assessment Order u/s 143(3):
The petitioner company filed its return of income for the assessment year 2001-02, claiming a deduction u/s 80-IA. The AO disallowed this deduction and computed the total income at Rs. 79,99,709. The petitioner challenged this disallowance before the CIT(A), raising an additional ground that the assessment was without jurisdiction as no notice u/s 143(2)(i) was served within twelve months from the end of the month of filing the return. The CIT(A) confirmed the disallowance and refused to admit the additional ground. The Tribunal, however, quashed the assessment order, holding that the mandatory requirement of service of notice u/s 143(2) within one year was not satisfied, rendering the assessment invalid.
2. Legality of Reopening the Assessment u/s 148:
After the Tribunal's order, the AO issued a notice u/s 148 to reopen the assessment. The petitioner challenged this notice, arguing that the Tribunal's order had attained finality and the AO could not reopen the case without fresh material. The respondent contended that the assessment was a nullity and could be rectified. The court noted that the Tribunal's basis for setting aside the assessment was the non-service of notice u/s 143(2) within the prescribed time, making the assessment a nullity in law.
3. Applicability of the Proviso to Section 147:
The court referred to the Supreme Court's judgment in Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd., which clarified that for initiating action u/s 147, the AO must have "reason to believe" that income has escaped assessment. The court held that since the original assessment u/s 143(3) was a nullity, the proviso to section 147 was not applicable. The AO's reasons for reopening the assessment indicated a failure on the part of the assessee to disclose material facts fully and truly, justifying the reopening under the main provision of section 147.
Conclusion:
The court dismissed the petition, stating that the initiation of proceedings u/s 148 was not illegal despite the AO's incorrect reference to the proviso to section 147. The petitioner was given the liberty to present its case before the AO to show that the claim u/s 147 was rightly made and allowed. The court also referred to the decision in Consolidated Photo & Finvest Ltd. v. Asstt. CIT, which supported the AO's action based on the material already on record.
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2009 (10) TMI 949
Issues Involved:
1. Ownership of the truck based on registration and affidavit.
2. Applicability of the Sale of Goods Act, 1930 vs. Transfer of Property Act, 1882.
3. Legal implications of non-registration of transfer under the Motor Vehicles Act, 1939 and 1988.
4. Validity of transfer of ownership without registration.
Summary:
1. Ownership of the truck based on registration and affidavit:
The plaintiff filed a suit for declaration claiming half ownership of a truck (registration No. HR 47-4738) based on an affidavit dated 10.9.1996 executed by defendant No.1, acknowledging the plaintiff's contribution to the purchase. Both lower courts declared the plaintiff as half-owner. The appellant argued that the truck's registration certificate listed defendant No.1 as the sole owner, and ownership cannot be claimed based on an affidavit.
2. Applicability of the Sale of Goods Act, 1930 vs. Transfer of Property Act, 1882:
The court held that the sale of motor vehicles is governed by the Sale of Goods Act, 1930 (the Goods Act) and not by the Transfer of Property Act, 1882. Citing Supreme Court judgments, it was emphasized that property in specific or ascertained goods transfers to the buyer when intended by the parties, as per Section 19 of the Goods Act.
3. Legal implications of non-registration of transfer under the Motor Vehicles Act, 1939 and 1988:
The court discussed various judgments, including those from the Supreme Court and High Courts, establishing that the transfer of ownership of a motor vehicle is not contingent upon registration. Non-compliance with registration requirements under Section 31 of the MV Act, 1939, or Section 50 of the MV Act, 1988, may result in penalties but does not affect the validity of the transfer of ownership.
4. Validity of transfer of ownership without registration:
The court reiterated that the registration certificate is not a document of title but an important piece of evidence. Ownership of a vehicle can be transferred by payment and delivery, and failure to update the registration does not invalidate the transfer. The court found no merit in the appellant's arguments and upheld the lower courts' judgment, confirming the plaintiff's half ownership of the truck.
Conclusion:
The appeal was dismissed, affirming the plaintiff's ownership of half the truck based on the affidavit and contributions to the purchase, despite the registration certificate listing defendant No.1 as the sole owner. The court emphasized that the transfer of ownership of movable property is not dependent on registration entries.
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2009 (10) TMI 948
Issues Involved:1. Whether the subsidy received by the assessee from the Government of Gujarat for the specific purpose of repayment of loans taken for the construction of tube wells and lift-irrigation schemes, and the interest capitalized during the construction period, is a capital receipt or income chargeable to tax. Judgment Summary:Issue 1: Nature of Subsidy - Capital Receipt or IncomeThe common issue in both appeals is whether the subsidy received by the assessee from the Government of Gujarat for the specific purpose of repayment of loans taken for the construction of tube wells and lift-irrigation schemes, and the interest capitalized during the construction period, is a capital receipt or income chargeable to tax. The assessee, a State Government undertaking, showed Rs. 12,97,46,000/- as subsidy received for loan repayment and Rs. 1 crore as capitalized interest in its balance sheet. The Assessing Officer (AO) treated the subsidy as income based on the Supreme Court judgment in Sahaney Steel and Press Works Ltd. vs. CIT, 228 ITR 253, arguing that the subsidy was incidental to the assessee's business. The AO added Rs. 13,97,46,000/- to the assessee's income for the assessment year 1996-97 and Rs. 1,48,15,000/- for the assessment year 1998-99. The CIT(A) upheld the AO's decision. The assessee contended that the subsidy was for capital purposes and should not be assessed as income, citing the Supreme Court judgments in Sahaney Steel and CIT vs. Ponni Sugars, (2008) 306 ITR 392. The assessee argued that the subsidy was for constructing capital assets (tube wells and lift irrigation schemes) and should be treated as capital receipt. The Tribunal noted that the subsidy was granted to meet the cost of constructing tube wells and lift irrigation schemes, which are capital assets. The Tribunal applied the "purpose test" from the Supreme Court judgments, determining that the subsidy was for capital purposes and should be treated as capital receipt. The Tribunal allowed the assessee's appeals on this ground. Other Grounds:Grounds relating to the disallowance of the cost of failed tube wells, previous year's expenses, and depreciation on the tube wells were dismissed as not pressed. Similarly, the ground questioning the AO's decision in not considering the revised statement of income filed in response to notice u/s 139(9) was also dismissed as not pressed. Conclusion:Both appeals were partly allowed, treating the subsidy as a capital receipt and not as income chargeable to tax. No costs were awarded. Order pronounced in the open court on 16th October, 2009.
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2009 (10) TMI 947
Issues involved: Appeal by Revenue against rejection of registration u/s 12A for Assessment year 2001-02.
Summary:
Issue 1: Registration u/s 12A
The appeal by Revenue arose from the rejection of registration u/s 12A for Assessment year 2001-02. The trust's initial application for registration was rejected due to failure in providing necessary details. A fresh application was later filed, and registration was granted w.e.f. 1.4.2003. Subsequently, a request for registration from the trust's creation date was denied by the DIT(E), leading to the appeal.
Details:
The trust's first application for registration u/s 12A was rejected due to lack of details. A fresh application was filed, and registration was granted w.e.f. 1.4.2003. A later request for registration from the trust's creation date was dismissed by the DIT(E), leading to the appeal. The DIT(E) rejected the request for condonation of delay, emphasizing that the initial rejection had become final as no appeal was filed.
Decision:
The ITAT upheld the DIT(E)'s decision, stating that since no appeal was made against the initial rejection, and no condonation of delay was sought in the subsequent application, registration from the creation date was not justified. The ITAT deemed the DIT(E)'s rejection of registration with effect from the trust's creation date as justified, ultimately dismissing the appeal by the assessee.
This summary provides a detailed overview of the issues, arguments presented, and the final decision made by the ITAT in the judgment.
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2009 (10) TMI 946
Issues Involved:
1. Addition of transport expenses.
2. Addition to closing stock.
3. Validity of assessment framed on legal grounds.
4. Claim of deduction under section 10B of the Income Tax Act, 1961.
Issue-wise Detailed Analysis:
1. Addition of Transport Expenses:
The assessee challenged the addition of Rs. 98,61,526/- made by the Assessing Officer (A.O.) for transport expenses, which was upheld by the Commissioner of Income Tax (Appeals) [CIT(A)]. The assessee argued that complete details were submitted, and no defects were found. Payments were made by account payee cheques, and tax was deducted at source. The discrepancy was due to TDS not considered by the parties and differences in recording bill dates. The Tribunal found that the assessee maintained regular books of accounts, confirmed transactions, and provided Permanent Account Numbers for the parties. The Tribunal held that the addition was unjustified and directed its deletion.
2. Addition to Closing Stock:
The assessee contested the addition of Rs. 13,50,126/- to closing stock, reduced from Rs. 8,54,64,296/- by CIT(A). The A.O. based the addition on seized documents, which the assessee claimed were erroneous due to software issues. The A.O. accepted the software error but still made the addition. The Tribunal noted that no excess stock was found during the search, and the A.O. had used the same closing stock in the subsequent assessment year. The Tribunal found the addition unjustified and directed its deletion.
3. Validity of Assessment Framed on Legal Grounds:
The assessee argued that the assessment was invalid as no opportunity was granted before approval under section 153D, and the transfer of the case was not communicated. The Tribunal, referencing section 127(3), held that no opportunity was required for transfers within the same city. The CIT(A) had found that the Additional CIT approved the assessment in compliance with section 153D. The Tribunal dismissed the ground, finding no merit in the assessee's arguments.
4. Claim of Deduction Under Section 10B:
The Revenue challenged the CIT(A)'s decision to allow the assessee's claim for deduction under section 10B. The A.O. argued that the assessee was not engaged in manufacturing, the unit was formed by splitting up or reconstructing an existing business, and profits were inflated. The Tribunal found that the assessee was engaged in the production of iron ore, which qualifies as manufacturing. The Tribunal noted that the 100% EOU was a new unit with separate books and no evidence of splitting up or reconstruction. The Tribunal also found no justification for the A.O.'s profit bifurcation, as separate audited accounts were maintained. The Tribunal upheld the CIT(A)'s decision to allow the deduction under section 10B.
Separate Judgments Delivered:
None mentioned.
Conclusion:
The Tribunal partly allowed the assessee's appeal, dismissed the Revenue's appeals, and dismissed the assessee's cross-objection.
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2009 (10) TMI 945
Issues involved: Determination of eligibility for exemption under Notification No.10/97-CE for Uninterrupted Power Supply System (UPSS) supplied to research institutes.
Summary:
The case involved appeals related to the denial of exemption under Notification No.10/97-CE for the UPSS supplied by the assessee to research institutes. The original authority confirmed duty demands and imposed penalties, which were modified by the Commissioner (Appeals) to allow some benefits. The main issue was whether the UPSS qualified for the exemption under the said notification.
Upon hearing both sides and examining the records, it was found that the UPSS provided by the assessee to research units could be considered as accessories of computers or equipment, as per the literature presented. The Tribunal noted that the UPSS served to protect equipment from various electrical perils, aligning with the description under the exemption notification for scientific and technical instruments and equipment. Therefore, the Tribunal concluded that the UPSS fell under the category specified in the notification and should be eligible for the exemption.
Consequently, the appeal filed by the Revenue was dismissed, while the appeals filed by the assessee were allowed, affirming the eligibility of the UPSS for the exemption under Notification No.10/97-CE.
*(Operative part of the order was pronounced in open court on 29.10.09)*
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