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2009 (2) TMI 894
Issues involved: Condonation of delay in filing appeals under Section 260 A of the Income Tax Act.
Summary:
The appellant, a Hindu Undivided Family (HUF) under the control of the Court of Wards, sought condonation of a 1754-day delay in filing appeals against orders passed by the Income Tax Appellate Tribunal. The appellant claimed they were unaware of the orders until a public auction notice in June 2008 revealed the income tax liabilities. Subsequently, the appeals were filed with applications for condonation of delay in October 2008.
The appellant argued that they promptly took action upon learning of the orders, obtaining necessary documents and filing appeals. They contended that the delay should be condoned, citing the need to construe "sufficient cause" liberally, as per a Supreme Court judgment.
On the other hand, the respondent, an officer in-charge of the Court of Wards, Nagpur, asserted that the appellant should have contacted them to inquire about the pending income tax proceedings. The respondent deemed the delay inexcusable and requested the applications be dismissed.
After considering the arguments, the Court noted that while the Court of Wards managed the appellant's properties, the appellant failed to contact the officer in-charge to inquire about the income tax proceedings. Despite the liberal interpretation of "sufficient cause," the Court found the appellant's inaction and the significant delay in filing appeals unacceptable. Consequently, the Court dismissed the applications for condonation of delay and subsequently dismissed the appeals.
The Court held that the delay of 1754 days was not justifiable based on the appellant's lack of action and knowledge of the proceedings, leading to the dismissal of all applications and appeals.
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2009 (2) TMI 893
Disqualification of Membership under Rule 25 of the Delhi Co-operative Societies Rule, 1973 - `deemed' - without availing the statutory remedies available under the Act and the Rules, the respondent No. 2 filed a writ petition - Allotment of plot or in alternative to refund money paid - respondent No. 2 submitted that she has been fighting a battle for getting her legitimate right and after having accepted the prayer for transfer, the Society cannot turn around and take a stand that since Anoop Singh was disqualified, the order of the High Court is indefensible - HELD THAT:- We find that before the High Court there was no appearance on behalf of the present appellant. For the purpose of the present case Sub-rule (2) of Rule 25 is of paramount importance. There is a deemed disqualification. The effect of it has not been examined by the High Court.
"The word `deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible."
"Deems" means "is of opinion" or "considers" or "decides" and there is no implication of steps to be taken before the opinion is formed or the decision is taken.
Ld Counsel for the appellant is right that normally when a statutory remedy is available, the same should be availed. In the instant case that aspect has also not been examined by the High Court. We are therefore of the considered opinion that the writ petition needs to be heard by the High Court afresh to be decided keeping in view the applicable legal provision.
Since no counter affidavit had been filed by the present appellant before the High Court we permit it to do so within a period of one month. Till the disposal of the writ petition by the High Court afresh, no third party rights in respect of the plot which is stated to have been allotted to respondent No. 2 shall be created by the appellant.
The appeal is allowed.
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2009 (2) TMI 892
Issues involved: Jurisdiction of the Appellate Tribunal to consider the issue of jurisdiction u/s 147 of the Income Tax Rules.
Summary:
Issue 1: Jurisdiction of the Appellate Tribunal
The assessee approached the High Court with questions regarding jurisdiction as per the appeal memo. The Court emphasized that even if the order on Cross Objections was rejected, the Tribunal was bound to address the issue of jurisdiction as per Rule 27 of the Appellate Tribunal Rules, 1961. The assessee contended that the re-opening of assessment u/s 147 was without jurisdiction, which was rejected by the C.I.T. (Appeals) but held in favor of the assessee on merits. The Tribunal refused to consider the jurisdiction issue after rejecting the cross objections, but reversed the C.I.T. (Appeals) order on merits.
Issue 2: Right to Raise Jurisdiction Issue
The High Court held that the issue of jurisdiction can be raised before any forum even without filing Cross Objections. Lack of jurisdiction can be challenged in the same proceedings or collateral proceedings if the order is deemed null at law. The Court emphasized that a lack of jurisdiction cannot be cured by consent of parties or non-raising of the issue initially. The Appellant was entitled to support the order on grounds decided against him, including jurisdiction, as per the Rules.
Conclusion:
The High Court set aside the entire order and remanded the matter back to the Tribunal for fresh consideration according to law. The Tribunal was directed to decide the jurisdiction issue based on existing materials without introducing new evidence unless proper procedures were followed.
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2009 (2) TMI 891
Issues Involved:
The appeal challenges the order of the Madras High Court rejecting a petition filed under Sec.482 of the Code of Criminal Procedure, 1973.
Background:
The case involves a complaint filed by Sukanya against her husband and his family members under Sec.498A of the IPC and Sec.4 of the Dowry Prohibition Act. The complaint was treated as an FIR, leading to a charge sheet being filed. The appellants argued that the complaint was baseless and an abuse of the legal process due to lack of evidence and delayed filing.
Legal Analysis:
The appeal raised the issue of whether the complaint prima facie constituted an offense, justifying the continuation of proceedings. The court referred to the case of Bhajan Lal, which provides illustrative examples where interference under Sec.482 is warranted. The court highlighted that if the allegations are absurd or inherently improbable, or if there is a legal bar to the proceedings, the court can intervene.
Judgment:
The court emphasized that Sec.482 does not confer new powers but saves the inherent jurisdiction of the court to prevent abuse of process and secure justice. The court must exercise this power sparingly and only when justified by specific tests. In this case, the court found that the complaint fell under the parameters set out in Bhajan Lal's case and quashed the proceedings before the Judicial Magistrate.
Conclusion:
The appeal was allowed, and the proceedings in Criminal Petition No. C.C.No. 385/2000 were quashed. The court stressed the need for caution in exercising the wide powers under Sec.482 to ensure justice is served without stifling legitimate prosecutions. The judgment serves as a reminder of the court's duty to prevent abuse of process and promote real and substantial justice.
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2009 (2) TMI 890
Issues involved: Appeal against rejection of writ petition by High Court without providing reasons.
The Supreme Court, in a case where the appellant, a constable, sought salary and pay revision, set aside the High Court's order rejecting the writ petition. The appellant had raised multiple issues in the petition, but the High Court dismissed it without examining any of them. The Supreme Court emphasized the importance of providing reasons in such decisions, citing the necessity of giving satisfactory reasons for a just outcome. The Court held that the High Court's order lacked reasoning and remitted the matter back to the High Court for fresh consideration, with each party bearing their own costs.
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2009 (2) TMI 888
Demanding and accepting gratification by Inspector of Central Excise - convicted the appellant u/s 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act - Test of preponderance of probability - Whether the recovery of the tainted money itself is sufficient to convict the appellant u/s 7? - Accused No. 1 and appellant both was working as Inspector of Central Excise - HELD THAT:- The appellant at the earliest point of time explained that it was not the bribe amount received by him but the same was given to him by PW-10, saying that it was towards repayment of loan taken by his Manager-PW2 from the Accused No. 1. This is evident from the suggestion put to PW-2 even before PW-10 was examined. Similar suggestion was put to the investigating officer that he had not recorded the version given by the appellant correctly in the post trap mahazar-Exhibit-P9 and no proper opportunity was given to explain the sequence of events.
A three-Judge Bench in M. Narsinga Rao v. State of A.P.[2000 (12) TMI 892 - SUPREME COURT] while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification
It is well settled that the presumption to be drawn u/s 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence.
If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.
It is against this background of principles we have examined the contention of the appellant that the charges u/s 7 have not been proved against him. It was argued by Shri U.U. Lalit, Senior counsel, that the circumstances found by the HC in their totality do not establish that the appellant accepted the amount of ₹ 1500/- as gratification. Having examined the findings of both the Courts, we are satisfied that the appellant has proved his case by the test of preponderance of probability and we accordingly reach the conclusion that the amount was not taken by the appellant as gratification. He was made to believe that amount paid to him was towards the repayment of loan taken by PW2 from Accused No. 1.
The prosecution failed in establishing the guilt of the accused beyond reasonable doubt that the appellant received any gratification. Therefore, conviction of the appellant and the sentence imposed upon him is set aside. The appeal is allowed.
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2009 (2) TMI 887
The Supreme Court dismissed the appeal in the case with citation 2009 (2) TMI 887. Judges were Mr. S.H. Kapadia and Mr. Aftab Alam.
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2009 (2) TMI 886
Proceedings initiated u/s 67 of the KVAT Act, 2003 challenged on the ground of the orders passed being vitiated on the ground of period of limitation having expired - Adjudicating officer ceased to have jurisdiction by virtue of limitation of one year provided under the proviso to Section 67(1) - Notice was issued u/s 67 pointing out that variation in stock was noticed during inspection and consequently appellant was called upon to file objection against proposal for penalty - No reply from appellant - another notice was issued proposing penalty for attempted evasion of tax for two years - Even though the adjudicating authority is bound to complete adjudication pursuant to search u/s 67 within one year from the date of detection of offence, appellant did not raise any objection of time bar even after receipt of two notices
HELD THAT:- In this case we are told that the records were verified on 19.7.2007. However, it is not known whether the process of evaluation was carried out then or later. Counsel for the appellants contended that proceeding is time barred even with reference to date of verification of accounts which was on 19.7.2007.
The verification of accounts need not be the date of detection of offence. During verification, the officer has to evaluate the accounts and compare the same with physical stock and only when he detects offence, he gets jurisdiction to proceed to levy penalty. Even though statute does not require the officer to record detection of offence, initiation of proceedings u/s 67 is sufficient evidence of detection of offence.
We do not find anything in the Act to indicate the grounds on which Deputy Commissioner can extend the time for completion of proceedings u/s 67(1). In any case the contention of the counsel that the extension of time should be granted by the Deputy Commissioner within the time limit of one year is a tenable contention. If records prove that extension of time is granted beyond one year from date of detection of offence, then such proceedings automatically become invalid affecting the validity of the penalty order itself. This is a matter which requires to be examined by the appellate authority with reference to records.
However, we do not think any adjudication proceedings is contemplated under the Act requiring notice to be issued to the dealer or even issuing a communication extending the time. If the dealer raises objection to the penalty notice on ground of limitation, then AO is bound to communicate the order of the Deputy Commissioner and thereafter only he gets jurisdiction to continue the proceedings against the assessee.
In this case appellant has not raised the objection of limitation when notice was served proposing penalty. So much so, appellant can raise the objection only in appeal and ld Single Judge rightly held so. We, therefore, dismiss the Writ Appeal leaving freedom to the appellant to verify the records and raise limitation as a ground, which appellate authority will consider with reference to the records and in the light of the meaning assigned to the Section. Appellant is granted two weeks time from date of receipt of this judgment to file appeal, if it is not already filed.
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2009 (2) TMI 885
The Supreme Court dismissed the Review Petition after carefully reviewing it and finding no grounds to entertain it. Delay was condoned.
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2009 (2) TMI 884
Issues Involved:
1. Rejection of Plaint under Order 7, Rule 11, C.P.C.
2. Specific performance of a Memorandum of Understanding (MoU).
3. Applicability of the Specific Relief Act, 1963.
4. Enforceability of family arrangements.
5. Partition and separate possession of property.
Detailed Analysis:
1. Rejection of Plaint under Order 7, Rule 11, C.P.C.:
The first defendant sought rejection of the Plaint under Order 7, Rule 11, C.P.C., arguing that there was no cause of action for the Suit and that the Suit was barred by law under the Specific Relief Act, 1963. The Court noted that the Suit was for specific performance of a MoU dated 24.9.2005 and not for partition, and therefore, the maintainability of the Suit had to be examined in light of the objections raised.
2. Specific Performance of a Memorandum of Understanding (MoU):
The MoU outlined that each party was entitled to a 1/4th share in the property and agreed to joint development with a builder. However, the MoU lacked specifics on crucial aspects such as the method of choosing the builder, the terms of the agreement, and the allocation of the constructed area. The Court found that the MoU was uncertain and indeterminate in several material aspects, making it incapable of specific enforcement.
3. Applicability of the Specific Relief Act, 1963:
The Court examined whether the MoU could be specifically enforced under the Specific Relief Act, 1963, and Section 29 of the Indian Contract Act, 1872. The Court concluded that the MoU could not be specifically enforced due to its inherent uncertainties. Section 12 of the Specific Relief Act, which generally prohibits specific performance of part of a contract, was particularly relevant. The Court held that the MoU fell under the exceptions where the part left unperformed forms a considerable portion of the whole and does not admit of compensation in money.
4. Enforceability of Family Arrangements:
The plaintiffs argued that family arrangements are enforceable in law and cited several Supreme Court decisions supporting this view. The Court acknowledged that family arrangements are generally upheld to preserve family unity and honor. However, it emphasized that even family arrangements must meet the basic requirements of an enforceable agreement, such as consensus ad idem and absence of fraud or misrepresentation. The Court found that the MoU in question did not meet these requirements due to its lack of material particulars.
5. Partition and Separate Possession of Property:
The Court noted that there were two Suits: one for specific performance of the MoU and another for partition and separate possession of the property. The defendant had also sought Letters of Administration based on a Will. The Court observed that the only certainty in the MoU was the undivided share of each party, while other aspects remained indeterminate. The Court concluded that the present Suit for specific performance was redundant and that the issues could be addressed in the pending Suit for partition.
Conclusion:
The Court allowed the Application for rejection of the Plaint, finding that the MoU could not be specifically enforced due to its inherent uncertainties and that the Suit was barred by law. The plaintiffs were advised to pursue their claims in the pending Suit for partition, where they could file the MoU and argue their case regarding the shares in the property.
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2009 (2) TMI 883
The High Court Bombay High Court corrected a typographical error in an order, changing the decision in favor of the assessee and against the revenue in an Income Tax Appeal. The appeal was allowed after the correction was made by the court.
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2009 (2) TMI 882
Issues Involved:
1. Regularization of appointment of respondent no.1 as an Assistant Teacher.
2. Validity of the interim order passed by the Learned Single Judge.
3. Compliance with prescribed recruitment rules and procedures.
4. Entitlement to back wages and service benefits.
Summary:
1. Regularization of Appointment:
The State of West Bengal challenged the High Court's decision to treat respondent no.1 as an approved Assistant Teacher and to allow him to resume his duties with 50% back wages and other service benefits. The High Court's decision overturned the learned Single Judge's dismissal of the Writ Petition seeking regularization of the respondent's appointment.
2. Validity of Interim Order:
The learned Single Judge initially passed an interim order directing the District Inspector of Schools to regularize the respondent's appointment. This interim order was not complied with, leading to contempt proceedings. The approval granted was based on this interim order, which the learned Single Judge later questioned, noting that the respondent was appointed against a leave vacancy and not a permanent vacancy.
3. Compliance with Recruitment Rules:
The Division Bench allowed the appeal, but the Supreme Court found this approach incorrect. The respondent was appointed for a leave vacancy, and the procedures for filling permanent vacancies were not followed. The Supreme Court emphasized that the interim order did not justify regularization without following the proper recruitment process as outlined in the Office Memorandum No. 2816(17) G.A. dated 4.12.1989.
4. Entitlement to Back Wages and Service Benefits:
The Division Bench's direction to pay 50% back wages was deemed incorrect by the Supreme Court, which upheld the principle of "no work no pay." The Supreme Court restored the learned Single Judge's judgment, dismissing the Writ Petition and rejecting the claim for back wages and service benefits.
Conclusion:
The Supreme Court set aside the Division Bench's judgment and restored the learned Single Judge's decision, emphasizing the need for adherence to proper recruitment procedures and rejecting the claim for regularization and back wages. The Court recommended that the government consider condoning the age bar for the respondent due to the prolonged litigation.
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2009 (2) TMI 881
Issues involved: Petition challenging rejection of waiver application u/s 19 of Act of 2006 and interpretation of provisions of the Act.
The judgment by the High Court of Madhya Pradesh pertains to a petition filed by a partnership firm aggrieved by an award passed by the Facilitation Council under section 33 of the Arbitration and Conciliation Act, 1996, seeking exemption from depositing 75% of the awarded amount u/s 19 of the Micro, Small and Medium Enterprises Development Act, 2006. The petitioner contended that the rejection of the waiver application was on incorrect premises, especially since an application u/s 34 of the Act of 1996 was pending before the trial Court. The petitioner argued for the waiver of the deposit requirement or, alternatively, for restrictions on the respondent's ability to withdraw the deposited amount. On the other hand, the respondent argued against granting the waiver, citing the provisions of section 19 of the Act of 2006. The Court noted the objectives of the Act of 2006 to support small enterprises and ensure timely credit flow, emphasizing the mandatory nature of depositing 75% of the awarded amount as directed by the Court.
The Court analyzed section 19 of the Act of 2006, which mandates the deposit of 75% of the awarded amount pending any appeal against an award or order. The proviso to this section empowers the Court to determine the disbursement of the deposited amount to the supplier under reasonable conditions. The Court clarified that the requirement of depositing 75% of the amount, as directed by the Court, is mandatory and cannot be diluted. In line with this, the Court ordered the petitioner to deposit the specified amount within four weeks via Bank Draft. Additionally, the Court directed the disbursement of 50% of the amount to the respondent, with the remaining 25% to be invested in a Fix Deposit pending the final decision in the case. The respondent was required to provide solvent surety for withdrawing their share of the deposited amount.
In conclusion, the Court partially allowed the writ petition, modifying the order to align with the provisions of section 19 of the Act of 2006. No costs were imposed in this matter.
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2009 (2) TMI 880
Issues Involved:
1. Entitlement for specific performance of agreement.
2. Bar of limitation on the suit.
3. Bona fide purchaser status of defendant No. 6.
4. Binding nature of the suit agreement on defendants.
5. Discretionary jurisdiction for specific performance.
Summary:
1. Entitlement for Specific Performance of Agreement:
The Supreme Court examined whether the plaintiff was entitled to specific performance of the agreement dated 4.12.1978. The Court emphasized that the plaintiff must demonstrate continuous readiness and willingness to perform her part of the contract as required u/s 16(c) of the Specific Relief Act, 1963. The plaintiff did not examine herself, and her husband, who was her General Power of Attorney holder, testified on her behalf. The Court held that the plaintiff failed to prove readiness and willingness, as no evidence was provided to show the availability of the consideration amount. The legal notice (Ex.A3) was deemed insufficient to establish readiness and willingness.
2. Bar of Limitation on the Suit:
The Court considered whether the suit was barred by limitation. The agreement stipulated that the sale would be executed within two months after obtaining permission from the Ceiling Officer. The application for permission was filed but rejected. The Court noted that the plaintiff did not file the suit within a reasonable time, considering the backdrop of events and the delay in impleading subsequent purchasers as parties.
3. Bona Fide Purchaser Status of Defendant No. 6:
The Court examined whether defendant No. 6 was a bona fide purchaser for value without notice of the original contract. The High Court found that defendant No. 6 had no knowledge of the agreement for sale and had been in possession of the property since 1981. The Supreme Court agreed that the plaintiff failed to prove that defendant No. 6 was not a bona fide purchaser, as required u/s 19(b) of the Specific Relief Act.
4. Binding Nature of the Suit Agreement on Defendants:
The Court addressed whether the suit agreement was binding on the defendants, including defendant Nos. 5 and 6. The trial court had opined that defendant Nos. 5 and 6 had knowledge of the agreement between the plaintiff and Khanna. However, the Supreme Court found that the plaintiff did not raise any question regarding the bona fides of the transaction in her notice or plaint. The Court held that the trial court erred in concluding collusion between the defendants without sufficient evidence.
5. Discretionary Jurisdiction for Specific Performance:
The Court emphasized that the grant of specific performance is discretionary. Given that the respondents had been living in the property since 1981, the Court found no reason to exercise discretionary jurisdiction in favor of the plaintiff. The Court directed the defendants to pay a sum of Rs. 60,000 to the plaintiff, including the advance amount paid by her.
Conclusion:
The Supreme Court refused to grant specific performance of the contract, considering the plaintiff's failure to establish readiness and willingness and the bona fide purchaser status of defendant No. 6. The appeal was disposed of with no order as to costs.
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2009 (2) TMI 879
Issues Involved:
1. Maintainability of the suit for declaration and permanent injunction challenging the arbitration agreement.
2. Bar of the suit by Section 5 of the Arbitration and Conciliation Act, 1996.
3. Application under Section 8 of the Arbitration Act by a non-party to the arbitration agreement.
4. Bar of the suit by Sections 34 and 41 of the Specific Relief Act.
5. Jurisdiction of the arbitrator to decide on the validity of the arbitration agreement.
6. Procedural propriety in the appointment of the arbitrator.
7. Validity of the arbitral award.
Issue-wise Detailed Analysis:
1. Maintainability of the Suit:
The court held that a suit for declaration that an agreement containing an arbitration clause is fabricated, forged, and thus null and void, and for a permanent injunction restraining arbitration, does not lie. The suit is barred by Section 5 of the Arbitration Act and Sections 34 and 41(h) of the Specific Relief Act, read with Section 16 of the Arbitration Act. The court emphasized that the Arbitration and Conciliation Act, 1996, marks a significant change from the 1940 Act, with no equivalent to Sections 32 and 33, and that Section 16 now provides the arbitral tribunal the power to rule on its own jurisdiction.
2. Bar by Section 5 of the Arbitration Act:
The court reiterated that Section 5 of the Arbitration Act prohibits the jurisdiction of courts except as provided under the Act. The court noted that allowing a suit challenging the arbitration agreement would negate the effect of the statutory changes and provide a tool for delaying the disposal of claims, which is contrary to the intent of the Act.
3. Application under Section 8 by a Non-party:
The court held that the stock exchange, being the institution to whose arbitration the petitioner/appellant and stock broker had agreed, is entitled to maintain an application under Section 8 of the Arbitration Act. The court clarified that the word "party" in Section 8 refers to a party to the suit, not necessarily a party to the arbitration agreement.
4. Bar by Sections 34 and 41 of the Specific Relief Act:
The court found that the suit for declaration and permanent injunction is barred by the provisions of the Specific Relief Act. The court emphasized that a permanent injunction cannot be granted when an equally efficacious remedy is available, such as the remedy under Sections 16 and 34 of the Arbitration Act.
5. Jurisdiction of the Arbitrator:
The court confirmed that the arbitrator has the jurisdiction to decide on the validity of the arbitration agreement, including allegations of forgery and fabrication. The court cited the Supreme Court's decision in K.V. Aerner Cementation India Ltd. v. Bajranglal Agarwal, which held that the civil court does not have jurisdiction to pass an injunction against arbitral proceedings.
6. Procedural Propriety in Appointment of Arbitrator:
The court found no procedural impropriety in the appointment of the arbitrator. The stock exchange followed the prescribed procedure, and the arbitrator was appointed in accordance with the regulations. The court dismissed the petitioner's contention that the appointment was not in compliance with the regulations.
7. Validity of the Arbitral Award:
The court upheld the arbitral award, finding no grounds to challenge the arbitrator's findings. The court noted that the arbitrator had compared the petitioner's signatures on admitted documents and concluded that the Member Constituent Agreement was signed by the petitioner. The court also addressed other grounds of challenge, including the alleged prohibition on cash payments, and found them to be without merit. The court reduced the interest rate on the awarded amount from 18% per annum to 12% per annum during the pendency of the petition, considering the commercial nature of the transaction.
Conclusion:
The court dismissed both the Regular Second Appeal (RSA) and the Original Miscellaneous Petition (OMP), upholding the arbitral award and imposing costs of Rs. 50,000 to be shared equally by the counsel for the stock broker and the stock exchange.
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2009 (2) TMI 878
Issues involved: Company application for a composite scheme of arrangement for demerger and transfer of hotel business.
The judgment by the Gujarat High Court pertains to a company application for a composite scheme of arrangement involving the demerger and transfer of hotel business from one company to another. The resulting company, Atithya Inn Private Limited, a newly incorporated entity, seeks to enter into this arrangement with Gallops Realty Private Limited. The purpose is to spin off the hotel business of Gallops into a separate company, Atithya Inn, to provide focused attention to the hotel business separately. Both equity shareholders of the company have given their written consents to the proposed scheme of arrangement, as confirmed by a certificate from a Chartered Accountant. The court, noting the consents and compliance with legal requirements, dispensed with the need for a meeting of equity shareholders as mandated under Section 391(2) of the Companies Act, 1956. Consequently, the application was disposed of by the court.
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2009 (2) TMI 877
Issues:
1. Scheme of arrangement between de-merged company and resulting company under Companies Act, 1956.
2. Realignment of shareholding pattern and reduction of equity share capital.
3. Spin-off of hotel business into a separate company.
4. Consent of shareholders and creditors.
5. Dispensation of meetings of equity shareholders and unsecured creditors.
6. Dispensation of procedure under Companies (Court) Rules, 1959.
Analysis:
1. The judgment deals with a composite scheme of arrangement under Sections 391 and 394 read with Sections 78 and 100 to 103 of the Companies Act, 1956, between a de-merged company and a resulting company. The de-merged company, engaged in real estate projects and hotel development, proposes to transfer its hotel business to the resulting company, a newly incorporated entity exclusively focusing on hotel operations.
2. The scheme includes the realignment of the shareholding pattern by purchasing and subsequently canceling and reducing equity shares of the de-merged company. This restructuring aims to provide focused attention to real estate development and hotel business separately. The reduction of share capital and utilization of share premium account are integral parts of the scheme, ensuring no diminution of liability concerning unpaid share capital.
3. The judgment highlights the spin-off of the hotel business into a separate company to concentrate all hotel operations in the resulting company. This strategic decision by the Board of Directors aims to streamline operations and enhance business efficiency by segregating real estate development and hotel activities.
4. All equity shareholders and unsecured creditors have provided written consent, as evidenced by annexed documents, approving the scheme of arrangement. The court acknowledges the consent given by stakeholders, ensuring compliance with legal requirements and safeguarding the interests of those affected by the restructuring.
5. Due to the unanimous consent of equity shareholders and unsecured creditors, the court dispenses with the requirement of holding meetings as mandated by Section 391(2) of the Companies Act, 1956. This dispensation streamlines the process, recognizing the stakeholders' agreement and facilitating the efficient implementation of the scheme.
6. In light of the submissions made and the absence of secured creditors, the court further dispenses with the procedural requirements outlined in Rules 48 to 65 of the Companies (Court) Rules, 1959. This decision reflects the court's assessment of the situation and its determination that the scheme's execution does not necessitate adherence to certain procedural formalities.
In conclusion, the judgment approves the composite scheme of arrangement, recognizing the reorganization's strategic objectives and the stakeholders' consent. The court's decision to dispense with certain procedural requirements reflects a pragmatic approach to facilitate the smooth implementation of the scheme while upholding legal standards and protecting the interests of all involved parties.
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2009 (2) TMI 876
Issues Involved:
1. Whether answer scripts written by an examinee in a public examination are comprehended within the definition of 'information' under the RTI Act.
2. If the answer to the first question is affirmative, whether an examinee is entitled to access these answer scripts, or if access can be withheld by the public authority on any valid ground traceable in the RTI Act.
Issue-wise Detailed Analysis:
1. Definition of 'Information' under the RTI Act:
The court held that an assessed/evaluated answer script of an examinee writing a public examination conducted by public bodies like the WBBSE, CBSE, or universities does come within the purview of 'information' as defined in the RTI Act. The court emphasized that there is no justifiable reason to construe Section 2(f) of the RTI Act in a constricted sense. An assessed/evaluated answer script is a material, document, paper, and record, and also an opinion, which is comprehended within the definition of 'information'. The court referenced authoritative pronouncements from the Apex Court, including the decisions in Raj Narain, S.P. Gupta, and others, which established that the right to information is part of the fundamental right guaranteed under Article 19(1)(a) of the Constitution.
2. Entitlement to Access Answer Scripts:
The court addressed the argument that only information enumerated in Section 4 of the RTI Act is required to be published and thus only such information needs to be furnished. The court disagreed, stating that the RTI Act does not contemplate that information as defined in Section 2(f) is confined to those mentioned in Section 4. The court emphasized the overriding effect of the RTI Act, which means that a subordinate legislation framed by the WBBSE that denies inspection of answer scripts cannot negate a right flowing from the RTI Act.
The court also rejected the argument that answer scripts are not within the public domain and would not serve any public interest. It was held that each step in a process of examination conducted by the University, WBBSE, and CBSE is in the public domain. The court stated that the answer scripts become the property of the public authority once handed over by the examinee, and thus information in respect thereof cannot be denied.
The court further elaborated that the RTI Act aims to ensure transparency and accountability in the functioning of public authorities. The court held that disclosure of assessed/evaluated answer scripts would improve the quality of assessment/evaluation and make examiners more accountable. The court acknowledged the potential practical difficulties but emphasized that the larger public interest in transparency and fairness outweighs these concerns.
The court also addressed the argument regarding the potential floodgate of applications, stating that such an argument cannot be used to deny a valuable right of a citizen. The court held that the RTI Act should be interpreted in a manner that leans towards dissemination of information rather than withholding it.
Conclusion:
The court concluded that the judgment of the learned single judge did not call for interference. The writ appeal of the University and the writ petitions filed by the WBBSE were dismissed, and the connected writ petition filed by the father of the examinee was allowed. The court directed that inspection of the answer scripts be granted to the concerned examinees within four weeks from the date of receipt of the judgment. The court also set aside the order of the CBSE dated 12-7-2008 and directed the CBSE to grant inspection of the answer scripts within four weeks. However, the prayer for reevaluation of the scripts was refused, and the examinees were advised to seek relief in appropriate proceedings if initiated after accessing the assessed/examined answer scripts.
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2009 (2) TMI 875
Issues Involved:
1. Scope and object of the amended provision of Section 202 of the Code of Criminal Procedure.
2. Legality and propriety of the order passed by the learned Chief Judge, City Sessions Court, regarding the issuance of process against accused persons residing outside the jurisdiction.
3. Interpretation of the word "shall" in the context of Section 202.
4. Whether the amended provision of Section 202 mandates an inquiry in all cases where the accused resides outside the jurisdiction.
5. The discretionary power of the Magistrate under Section 202.
Comprehensive, Issue-Wise Detailed Analysis:
1. Scope and Object of the Amended Provision of Section 202 of the Code of Criminal Procedure:
The primary issue discussed is the scope and object of the amended provision of Section 202 of the Code of Criminal Procedure, which was introduced to prevent harassment through false complaints against persons residing at distant places. The court emphasized that the amendment aims to ensure that before summoning an accused residing beyond the Magistrate's jurisdiction, an inquiry must be conducted to ascertain sufficient grounds for proceeding.
2. Legality and Propriety of the Order by the Learned Chief Judge, City Sessions Court:
The petitioners challenged the order of the learned Chief Judge, City Sessions Court, which set aside the order of the Chief Metropolitan Magistrate issuing process against the accused persons. The City Sessions Court had directed compliance with the amended provision of Section 202 before issuing any process. The High Court examined whether the City Sessions Court's order was justified in light of the amended provision of Section 202.
3. Interpretation of the Word "Shall" in the Context of Section 202:
The court analyzed the interpretation of the word "shall" in the context of Section 202. Various precedents were cited to argue that "shall" does not always denote a mandatory requirement. The court referred to multiple Supreme Court judgments, such as Municipal Corporation of Greater Bombay v. The B.E.S.T. Workers Union and State of U.P. v. Babu Ram Upadhya, which held that the word "shall" could be interpreted as directory depending on the context and legislative intent.
4. Whether the Amended Provision of Section 202 Mandates an Inquiry in All Cases:
The court considered whether the amended provision of Section 202 mandates an inquiry in all cases where the accused resides outside the jurisdiction. The court concluded that the amendment does not make it obligatory for the Magistrate to conduct an inquiry in every case. The Magistrate has the discretion to decide whether to conduct an inquiry based on the evidence presented under Section 200. The court emphasized that the Magistrate's discretion should not be overridden by a rigid interpretation of the amendment.
5. Discretionary Power of the Magistrate Under Section 202:
The court highlighted that the discretionary power of the Magistrate under Section 202 remains intact even after the amendment. The Magistrate can choose to conduct an inquiry if he deems it necessary. The court clarified that the amendment to Section 202 applies only when the Magistrate decides to postpone the issuance of process. If the Magistrate is satisfied with the evidence under Section 200, there is no mandatory requirement to conduct an inquiry under Section 202.
Conclusion:
The High Court set aside the order of the learned Chief Judge, City Sessions Court, and restored the original order of the Chief Metropolitan Magistrate issuing process against the accused persons. The court directed the lower court to proceed with the case expeditiously, emphasizing that the application of Section 202 is discretionary and not mandatory. The court's interpretation ensures that the procedural law serves as an aid to justice rather than a hindrance.
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2009 (2) TMI 874
Issues:
Appointment of a substitute arbitrator upon the death, resignation, or termination of mandate of an arbitrator appointed under section 11(6) of the Arbitration and Conciliation Act, 1996.
Analysis:
The case involved an application under section 11(6) of the Arbitration and Conciliation Act for the appointment of a substitute arbitrator following the termination of the mandate of an arbitrator, a retired Judge, appointed by the Chief Justice. The key question was whether the substitute arbitrator should be appointed by the Chief Justice or in accordance with the arbitration agreement. Disputes arose from a contract with an arbitration clause stating that all disputes shall be referred to the sole arbitration of a person appointed by the respondent. The petitioner requested the Chief Justice for an arbitrator appointment as per section 11(6) of the Act.
In a previous order, the Court held that once an application was filed for appointment by the Chief Justice, the respondent lost the right to appoint an arbitrator as per the agreement. Subsequently, the respondent appointed an arbitrator, but later sought termination of the mandate due to the arbitrator's ill health. The Court allowed the termination and the current application was filed for a substitute arbitrator.
The respondent argued that the substitute arbitrator should be appointed according to the arbitration agreement under section 15(2) of the Act. However, the Court analyzed the legislative intent behind section 15(2) and referred to precedents where the Supreme Court clarified that the appointment of a substitute arbitrator should follow the rules applicable to the initial appointment, not necessarily the agreement.
The Court emphasized that the appointment of the substitute arbitrator should align with how the original arbitrator was appointed, in this case, by the Chief Justice. Precedents were cited to support the view that once an application is made under section 11(6), the right of the other party to appoint an arbitrator under the agreement ceases. Therefore, the respondent's subsequent appointment of an arbitrator did not impact the need for a substitute arbitrator appointed by the Chief Justice.
Ultimately, the Court allowed the application for a substitute arbitrator to be placed before the Chief Justice for naming, emphasizing that the appointment should follow the rules applicable to the initial appointment, disregarding the respondent's subsequent appointment.
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