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2008 (3) TMI 747 - MADRAS HIGH COURT
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... ... ..... anager to file the complaint. The Regional Manager is the delegate of the Board of Directors and he is nothing but a delegate and as per the maxim referred to earlier, he cannot delegate his power or duty in favour of the Assistant Area Manager. 15.In the light of the discussion made earlier, it is very clear that the present complaint has not been properly filed and the first appellate Court after considering the above legal aspect, has clearly held that the present complaint is not legally maintainable and therefore, the argument advanced by the learned counsel appearing for the appellant/complainant is sans merit and whereas the argument advanced by the learned counsel appearing for the respondent is really having attractive force. 16.In fine, this criminal appeal deserves dismissal and accordingly is dismissed. The judgment dated 14.12.2001 passed in Criminal Appeal No.48 of 1998 by the Additional District and Sessions Court (Fast Track Court No.I), Madurai is confirmed.
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2008 (3) TMI 746 - SC ORDER
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... ... ..... tement of the proceedings relating to the petitioner pending before the second respondent. The pendency of this writ petition will not come in the way of the Income Tax Settlement Commission in disposing of the matter before it in accordance with law.
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2008 (3) TMI 745 - DELHI HIGH COURT
Dishonour of Cheque - discharge of legally enforceable debt or not - insufficiency of funds - rebuttal of presumption - offences u/s 138 of the Negotiable Instruments Act, 1881 ('NI Act') - Prayer for sending the cheque for examination to a handwriting expert - determination of the time when the signature was appended - HELD THAT:- This Court is unable to accept the contention of the petitioner that if the signatures on the cheques are shown to be much prior to the date of filling up of the material particulars that would probablise the defense of the Petitioner. That the signature on the cheques is that of the petitioner is not disputed. The Petitioner has even in his cross-examination in fact admitted the fact that the cheques were issued by him and were handed over to the complainant along with a covering letter. For the reasons explained it matters little if the name of the payee, date and amount are filled up at a subsequent point in time, subject of course to what is stated in the proviso to Section 118 NI Act.
It is also not possible to agree with the contention that the determination of the time when the signature was appended will somehow explain the fact that the Petitioner has discharged the entire liability even before the cheque was presented for payment. Here two factors need to be noticed. The first is that although the Petitioner claims that he has closed his account in 2001 itself and that these blank cheques were handed over to the complainant prior to that, he did not write to the complainant informing the complainant that the account had been closed. Secondly, although he claimed that he has discharged the liability, admittedly this is only an oral assertion of the Petitioner and no receipts evidencing the payment of ₹ 8 lakhs have been produced in the court.
It is pointed out by learned Counsel for the Respondent No. 2 that at the stage of framing of charge, the Petitioner had claimed before the trial court that he had with him the receipts evidencing repayment. However, till date no such receipt has been produced. The burden will be on the accused to show that in fact he has discharged the liability even prior to the presentation of the cheques for payment. That cannot be proved by the report of a handwriting expert.
Section 139 NI Act which raises a rebuttable presumption in this behalf, would require some other positive evidence to be led by the accused to show that he has repaid the amount to the complainant. In other words, merely because there is a CFSL report that shows that the handwriting, the ink and the time of filling the material particulars is different from that of the signatures, that by itself will not go to prove that the accused has discharged his liability towards the complainant even before the date of the presentation of the cheques. For these reasons, there is no merit in the prayer of the petitioner for sending the cheques to the CFSL for the opinion of the handwriting expert.
An extensive reference was made to the judgment of this Court in BPDL Investments (Pvt.) Ltd.[2006 (2) TMI 691 - DELHI HIGH COURT] which arose in the context of a summary suit in which an application for leave to defense was being considered. It was submitted in that case that two undated cheques had been issued by the defendant in favor of the plaintiff and before it was presented the date was filled up by the plaintiff and that this constituted a material alteration.
Following the decision of the Andhra Pradesh High Court in Allampati Subba Reddy v. Neelapareddi [1965 (9) TMI 72 - ANDHRA PRADESH HIGH COURT], this Court held that there was no consent of the defendant to the alteration of the date and therefore in terms of Section 87 of the NI Act it was a material alteration. In the first place, this was not a case arising under Section 138 NI Act at all. Moreover, while adverting to Section 87 of the Act, the Court did not notice that the said Section was subject to Sections 20, 49, 86 and 125 NI Act. These provisions permit the holder in due course of a negotiable instrument to fill up the material particulars without the said instrument being rendered void.
Therefore, this Court finds no infirmity in the order of the learned MM declining to refer to the cheques for the opinion of the handwriting expert. The petitions are accordingly dismissed but in the circumstances with no order as to costs. The pending applications are disposed of.
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2008 (3) TMI 744 - HIMACHAL PRADESH HIGH COURT
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... ... ..... e or commerce or in the course of export out of the territory of India, and no tax is payable on the purchase of such goods under any other provisions of this Act, there shall be levied a tax on the purchase of such goods equal to the rate as notified, under Sub-section (1) of Section 6, by the State Government. 6. Admittedly, maize purchased by the applicant is included in Schedule-B to the Act, per item No. 26 of Group-D. Item No. 26, exempts agriculture and horticulture produce sold by a person or a member of his family and grown by himself or grown on any land in which he has interest. As already noticed, applicant had purchased the maize, in question, from agriculturists and so it was an item included in Schedule-B to the Act. If that is so, it was not subject to tax under Section 5-A of the Act, because Section 5-A applies to goods other than those specified in Schedule-B as already stated above. Issue (ii) is answered accordingly. Reference stands finally disposed of.
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2008 (3) TMI 743 - SUPREME COURT
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... ... ..... nk against the appellant and the defendants was neither cleared by the defendants nor by the appellant. Therefore, even if a letter was written to the Bank by the appellant on 31st of July, 1980 withdrawing the guarantee given by him, it was contrary to the clause in the agreement of guarantee, as noted herein earlier. Therefore, it was not open to the appellant to revoke the guarantee as the appellant had agreed to treat the guarantee as a continuing one and was bound by the terms and conditions of the said guarantee-. For this reason, it is difficult to accept the submissions of the learned Counsel for the appellant that in view of the statutory provision under Section 130 of the Act, after the revocation of the guarantee by the appellant, he was not liable to pay the decretal amount to the Bank No other point was raised by the learned Counsel for the appellant. Accordingly, there is no merit in this appeal. The appeal is thus dismissed. There will be no order as to costs.
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2008 (3) TMI 742 - BOMBAY HIGH COURT
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... ... ..... he learned Arbitrator in his order dated 27th August, 2007. The Arbitrator, as the record would show, was constrained to set the record straight by a communication dated 27th September, 2007. The learned Arbitrator is justified in coming to the conclusion that the petitioners have by their conduct waived their objection to enforce a punctilious observance of the time schedule of four months. To adopt any other construction would frustrate the object and purpose of arbitral proceedings and bring the whole machinery provided by the Act to facilitate an efficacious recourse to arbitration into grave peril. Speaking for myself, I would decline to accept a construction which would lead to that result. 14. The Court is duty bound to effectuate the object and intent of Parliament in enacting the law and the view which I have taken is one which will protect the object which Parliament had in view. 15. There is no merit in the petition. The petition shall accordingly stand dismissed.
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2008 (3) TMI 741 - SUPREME COURT
Suit on Mutual Wills - Caveatable interest within the meaning of the Indian Succession Act, 1925 - (1925 Act) vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 - Whether RSL has a caveatable interest in the proceeding in respect of the probate of the Will of MPB dated 13th July, 1982 - Application of sec. 92 CPC - Dictionary meaning of both the terms "caveat" and "interest". Legal Thesaurus Regular Edition by Wlliam C. Burton defines "interest" as under: Interest (Ownership), noun Assets, belongings, claim, dominion, droit, holding lawful possession, part, participation, percentage of ownership, portion, possession, property, proprietorship, right, right of ownership, rightful possession , seisin, share, stake, title.
"Caveat" has been defined in Random House Webster's Dictionary of the Law as under: caveat, n. 1, a warning or caution; admonition. In certain legal contexts, a formal notice of interest in a matter or property; for example, a notice to a court or public officer to suspend a certain proceeding until the notifier is given a hearing ; a caveat filed against the probate of a will.
The Rules framed by the Calcutta High Court provide for determination of the issue of caveatable interest as a preliminary issue. We do not see any reason as to why the High Court, in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure, could not frame such Rules. After coming into force of the Constitution such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
The Court having regard to its general power as also the power under Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. It is a rule of procedure and not of substance. A court is entitled to dismiss a lis at the threshold if it is found not maintainable. The Court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not, therefore, find any legal infirmity in the Rules.
As Agnates KKB, BKB, YB and GPB also claimed caveatable interest as agnates. Entry 2 of Class II of the Schedule appended to the Hindu Succession Act in this case would not bring them into the picture, as agnates will acquire an interest only when there is no heir of either Class I or Class II. When there exists Class II heirs, the appellants would not have any real interest in the property. The property upon the death of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta would pass on to their legal heirs. Appellants being not the heirs of MPB or PDB have no caveatable interest.
We may notice the affidavit of Shri KKB in opposition to the grant of probate, as a caveator. In the said affidavit, apart from the genuineness of the 1999 Will, the power of the testatrix to execute the same has also been questioned.
The said affidavit also reiterates the contents of the plaint. No contention, however, has been raised that they have a caveatable interest keeping in view the spiritual life of MPB and the testatrix as a member of the family or otherwise. Similar affidavits have been filed by B.K. Birla, Yashovardhan Birla, Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta. The sisters are also supporting the Birla family. The claim of acquiring caveatable interest on the said basis, thus, is wholly unacceptable.
PRE-EMPTION : FUTURE DOMAIN DOCTRINE - KKB, BKB and GPB claimed caveatable interest as co-owners of 1/5th share in Kumaon Orchards, two other co-owners being PB and S.K. Birla. S.K. Birla does not claim any caveatable interest in the estate of PDB. Even a person claiming an interest in the property of the testator by reason of an agreement for sale would not have a caveatable interest on the premise that such an agreement would be binding both upon the executor as also upon the heirs of the deceased (in the event, probate is not granted). The same principle would apply herein. Right of pre-emption, if any, is not affected by grant of probate. A right of pre-emption would arise only when a voluntary transfer is made for consideration in favour of a stranger and not prior thereto.
'Will' has been defined in Section 2(h) to mean "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death." Will takes effect after the death of testator. Rights and obligations of an executor of a Will arise only then. No right is created in the executor during the life time of the testator. Appointment of a testator and appointment of a trustee stand completely on different footings.
Validity of 1982 Will - We may assume that the 1982 Will was valid. As MPB could never become an executor, BKB's appointment does not confer on him a caveatable interest. An appointment of an executor ordinarily is the function of a court in terms of Section 301 of the 1925 Act. We, however, need not go into the question as to whether his appointment was legal or not. But, we may only notice that even in the deed of appointment, there is nothing to show that the necessary ingredients for appointment of B.K. Birla by the surviving executors had been made out as it was not stated that the original executor had seized to hold office.
The office of executor under the 1982 Will does not carry any remuneration therewith. The power to appoint an executor was dependent upon any executor ceasing to be one. The condition precedent has not been fulfilled. In the instant case, MPB had never become the executor, hence, the question of his "ceasing to be an executor" does not arise.
Appellants are not the legatees of the said Will. They are not the beneficiaries thereunder. They being merely executors, in our opinion, would not clothe them with a right to lodge a caveat as by reason thereof they did not derive any caveatable interest in the estate of PDB.
APPOINTMENT OF YB AS AN EXECUTOR IN PLACE OF MPB - So far as the case of YB is concerned, his appointment as an executor has been upheld by the High Court. It was, however, opined that by reason thereof, he did not acquire any caveatable interest. RSL has filed an appeal against that part of the judgment whereby his appointment as an executor of the Will of MPB of 1992 in place of PDB has been upheld.
We are furthermore of the opinion that only because YB has a right to maintain a suit for purported enforcement of the Mutual Wills, the same by itself cannot confer upon him a caveatable interest.
The affidavit of assets annexed by the Birlas to their petition for grant of probate in respect of 1982 Will of MPD and the affidavit of assets annexed by them to the petition for grant of probate of 1982 Will of PDB show that the assets held by the former mentioned in the petition for probate of his Will of 1982 are also shown as assets of PDB.
APPLICATION OF SECTION 92 CPC - A suit contemplated under Section 92 of the Code of Civil Procedure cannot be equated with a probate. In a suit under Section 92 of the Code of Civil Procedure, the title of the donor may be disputed. Such a question as of necessity must be gone into by the court which, however, is a forbidden domain for the Probate Court. Reliance has been placed on Sirajul Haq Khan and Ors. v. The Sunni Central Board of Waqf, U.P. and Ors.[1958 (9) TMI 80 - SUPREME COURT] wherein this Court was of the opinion that a person ascertaining that the property in dispute was not a wakf property was entitled to be heard. In a suit of that nature the title in the property or lack of it would be germane.
We have already held that GPB has caveatable interests as executor of MPB in respect of his Will of 1982. We, therefore, see no reason as to why RSL would not have a caveatable interest being a beneficiary under the 1999 Will in the proceedings for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in the appeal are to be upheld, the same ex facie would destroy the case of the appellants in the other cases.
We have noticed hereinbefore the averments made in the plaint of Civil Suit. Filing of the said suit, in our opinion, does not bar considering the caveatable interest and as we have not been called upon to decide the maintainability of the said suit at this stage, we do not make any observation thereupon. We have noticed the averments made in the plaint at some length only for the purpose of arriving at a finding on the question as to whether the plaintiffs therein have acquired any caveatable interest by reason thereof or not.
In our opinion, the High Court was right in opining that a caveatable interest may arise only after suit for enforcement of mutual Will is decreed and not prior thereto.
Before parting with this case we may notice some disturbing features. Each party for good or bad reasons has been opposing one or the other application filed by the other. It is stated that respondent No. 1 is opposing the application for substitution of heirs and legal representatives of Mrs. Laxmi Devi Newar, sister of MPB. We do not know on what premise such a stand is being taken. Counsel for both the parties put the blame on the other side for causing delay in disposal of the matters.
Therefore, are of the opinion that the probate proceedings should be taken up for hearing by the High Court as expeditiously as possible. We would request the High Court to consider this aspect of the matter.
Probate proceedings may also be taken up for hearing one after the other.
Probate proceeding of RSL in respect of Will of PDB executed in the year 1999 should be taken up first. The hearing of the probate proceeding of Will of MPB of 1982 may be taken up immediately thereafter. Judgments may be delivered, if possible, at the same time. The suit filed by the executors of the two 1982 Wills being Civil Suit may be taken up for hearing only after the disposal of the probate proceedings, if necessary.
CONCLUSION - Thus, Civil Appeal arising out of SLP filed by RSL challenging appointment of YB is allowed and all other appeals are dismissed with costs.
Who would be the beneficiaries of the case? - We think that benefit should go to Legal Services Authority. We direct the appellants in the appeal filed by Birlas should deposit a sum of ₹ 2,50,000/- (Rupees Two lac fifty thousand only) with the Member Secretary of West Bengal Legal Services Authority.
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2008 (3) TMI 740 - SUPREME COURT
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... ... ..... e plaintiff was no more in occupation. Thus, the disturbance of the status quo by the defendants has not been established. Thus, prima facie it is clear that the plaintiff has not laid the foundation for the grant of an interim order of mandatory injunction in his favour. The order so passed by the Additional District Judge, and confirmed by the High Court, therefore, calls for interference in this appeal. 18. The fact situation obtaining herein, however, is absolutely different. In this case, such a foundational fact has not only been raised by the respondents, the appellants admitted the factual scenario in that behalf. No party, it is trite, ordinarily should be allowed to take benefit of his own wrong. For the reasons aforementioned and particularly having regard to the fact situation obtaining herein, we are of the opinion that the impugned judgments warrant no interference. Accordingly, the appeal is dismissed with costs. Counsel's fee assessed at ₹ 10,000/-.
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2008 (3) TMI 739 - DELHI HIGH COURT
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... ... ..... but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. The highest bidder in the auction sale has been declared as the purchaser and that therefore, the proviso to Order 21 Rule 58 CPC is attracted. We have already shown that this is not the situation in law. The High Court further went on to suggest that a merely Agreement holder could not prevent the right of the auction-purchaser to get the sale confirmed. This statement is also patently incorrect statement in law. We have, therefore, no hesitation in holding that the High Court and the Trial Court were in utter error in relying on proviso to Clause (a) to Rule 58 of Order XXI CPC. The appeal has, therefore, to succeed. The Executing Court thus shall be obliged to decide the objections raised by the appellant. 18. In the above circumstances the appeal is allowed. However, in the facts and circumstances of the case, there will be no order as to costs.
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2008 (3) TMI 738 - SUPREME COURT
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... ... ..... amrao & Ors. vs. All India Backward Class Bank Employees Welfare Association & Ors. 2004 (2) SCC 76 (vide para 31), University Grants Commission vs. Sadhana Chaudhary & Ors. 1996(10) SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result. As has been held by this Court in Divisional Manager, Aravali Golf Club & Anr. vs. Chander Hass & Anr. 2008(3) 3 JT 221 and in Government of Andhra Pradesh & Ors. vs. Smt. P. Laxmi Devi 2008(2) 8 JT 639 the Court must maintain judicial restraint in matters relating to the legislative or executive domain. For the reasons afore-stated, the impugned order of the High Court is set aside. The appeals are allowed.
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2008 (3) TMI 737 - SECURITIES APPELLATE TRIBUNAL
Irregularities/illegalities in allotment of share - Certificate of registration expired and not been renewed - Unexplained delay of issue of show cause notice issued after a lapse of more than 8 years - Restraining from Accessing securities for a period of one month - violation of Clauses 1, 2 and 9 of the code of conduct prescribed in Schedule III to the Securities and Exchange Board of India (Merchant Bankers) Regulations, 1992 - HELD THAT:- We cannot resist observing that there has been an inordinate delay in initiating action against the appellant. It is alleged to have committed the irregularities in the earlier part of the year 1996 and the show-cause notice was admittedly issued in June 2004. How could any one file a proper reply after a lapse of more than eight years. This long delay itself causes grave injustice to the delinquent and results in the violation of the principles of natural justice. Such delays defeat the very purpose of the proceedings.
What is contended by the learned Counsel for the Board is that investigations commenced only in May 2002 and were going on till the year 2003. This is no explanation for the delay. Why could they not commence earlier. Again when investigations continue for years together, the very purpose of issuing the directions under Section 11B may be lost as in the instant case. In view of the inordinate delay in initiating action against the appellant and that too, when its certificate of registration had already expired, the impugned order cannot be sustained.
Thus, we allow the appeal and set aside the impugned order leaving the parties to bear their own costs.
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2008 (3) TMI 736 - SUPREME COURT
High Court stayed the proceedings - Suit for specific performance of the contract - no deed of sale executed in terms of the agreement - Court quashed a proceeding under Section 145 of the Code of Criminal Procedure as the matter pending before it arose out of a civil proceedings - HELD THAT:- The High Court indisputably is a final court of fact. It may go into the correctness or otherwise of the findings arrived at by the learned Trial Judge. A fortiori it can set aside the findings of the court below that the Ex. A.15 is a forged document or its authenticity could not be proved by the respondent.
It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff v. State of Madras [1954 (3) TMI 76 - SUPREME COURT] and Iqbal Singh Marwah v. Meenakshi Marwah [2005 (3) TMI 750 - SUPREME COURT].
It is furthermore trite that Section 195(1)(b)(ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah [2005 (3) TMI 750 - SUPREME COURT]
The impugned order, therefore, cannot be sustained which is set aside accordingly. Civil Appeal arising out of SLP (C) is allowed.
We, however, are of the opinion that the High Court should be requested to hear the appeal as early as possible and preferably within a period of three months from the date of receipt of a copy of this order. This, however, may not be taken to mean that we have entered into the merit of the matter.
It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case is permissible.
Hence, we are of the opinion that the interim order dated 24.05.2006 as modified by an order dated 17.07.2006 need not be interfered with particularly in view of the fact that according to the respondent it had made a payment of ₹ 35,47,000/- besides the disputed payment of ₹ 4,03,000/- and made deposits of ₹ 67,54,088/-.
Therefore, Civil Appeal arising out of SLP is dismissed.
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2008 (3) TMI 735 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... e parties. The applicants' further contention that the allegations of 'oppression' and 'mismanagement' are arbitrable and cannot be adjudicated upon without reference to the arbitration agreement is found to be correct. It is noticed that the reliefs sought in this CP are nothing but the seeking of compliance of the Arbitration Agreement dated 24.11.2004. There is no way that these reliefs can be granted without reference to the Arbitration Agreement. A few more alleged irregularities or alleged illegalities are not adequate enough to withhold this petition from referring the matter to arbitration which alone has jurisdiction in this matter. 16. In view of the foregoing, I allow the prayers in CA No. 366/07 and refer the matter to Arbitration as contemplated under Section 8 of the Arbitration and Conciliation Act, 1996. C.P. No. 13 of 2007 is disposed off in the above terms. All interim orders stand vacated. All CAs stand disposed of. No order as to cost.
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2008 (3) TMI 734 - SUPREME COURT
Nature of jurisdiction of the High Court u/s 482 of the Code - Registration of a crime and Investigation - Principles Of Natural Justice - Administrative control of the High Court - High court's master for the roster - Anonymous petition treated as Public interest Litigation or not - Whether the individual Judges ought to entertain communications and letters personally addressed to them and initiate action - Whether the contents of the petition submitted by the victim and as well as the allegations made in the anonymous complaint reveal any cause for issuing directions relieving the Investigating Officer of his statutory power and duty to investigate Crime No. 381 of 2005 under Section 376(g) of the Indian Penal Code? -
Ld Judge was of the view that the subsequent petition sent by Mini Varghese dated 27.10.2005 ought to have been treated as a separate petition praying for an order for proper investigation. The learned Judge was also of the view that the said petition was required to be clubbed with the anonymous petition.
HELD THAT:- The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the Section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
Can investigation be ordered by the High Court in exercise of its inherent jurisdiction under Section 482 of the Code based on such vague and indefinite allegations made in unsigned petition without even arriving at any prima facie conclusion that the contents thereof reveal commission of any cognizable offence - In our view, the High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested.
We find that the High Court has merely quoted certain allegations made against the appellant and others and proceeded on the basis of those allegations made in the anonymous petition without forming any prima facie opinion with regard to those allegations.
It is well settled that a public interest litigation can be entertained by the Constitutional Courts only at the instance of a bona fide litigant. The author of the letter in this case is anonymous, there is no way to verify his bonafides and in fact no effort was made by the Court to verify about the authenticity, truth or otherwise of the contents of the petition. It is not the case of the appellant that no Writ Petition under Article 226 of the Constitution of India can be entertained on the strength of a letter addressed by a bona fide litigant to the High Court. This Court in Sunil Batra (II) Vs. Delhi Administration [1978 (8) TMI 228 - SUPREME COURT] has accepted a letter written to the Supreme Court by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining of inhuman torture in the jail.
The law in this regard is summarized in Janata Dal Vs. H.S. Chowdhary [1992 (8) TMI 301 - SUPREME COURT] held that: It is clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold.
How to verify the credentials, character or standing of the informant who does not disclose his identity? In the instant case, there is no whisper in the order passed by the High Court about any attempts made to verify the credentials, character or standing of the informant. Obviously, the High Court could not have verified the same since the petition received by it is an unsigned one. In our view, the Public Interest Litigant must disclose his identity so as to enable the court to decide that the informant is not a wayfarer or officious intervener without any interest or concern.
In such view of the matter the suo motu action initiated cannot be treated as the one in public interest litigation.
Administrative control of the High Court vests in the Chief Justice of the High Court alone and it is his prerogative to distribute business of the High Court both judicial and administrative; that the Chief justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted; and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions; that the puisne judges cannot pick and choose any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. State of Rajasthan Vs. Prakash Chand & Ors.[1997 (12) TMI 657 - SUPREME COURT].
In our view, the learned judge ought not to have entertained the anonymous petition, contents of which remain unverified and made it basis for setting the law in motion as against the appellant as he was not entrusted with the judicial duty of disposing of PIL matters.
Therefore, directions issued by the High Court constituting the Special Investigation Team to investigate into the allegations made in anonymous petition are set aside.
The individual judges ought not to entertain communications and letters personally addressed to them and initiate action on the judicial side based on such communication so as to avoid embarrassment; that all communications and petitions invoking the jurisdiction of the court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction.
RELIEF - However, the fact remains that the Circle Inspector of Police, Chalakuddy having registered Crime No. 381 of 2005 made investigation in exercise of statutory power coupled with duty under the orders of learned Judicial First Class Magistrate, Chalakuddy. The learned Judge having entertained the petition/complaint from the victim ordered further investigation into the crime by the Special Investigation Team headed by the third respondent. The third respondent having completed the investigation arrived at certain conclusions but unnecessarily kept the matter pending on the ground that the paternity of the first child is to be verified with the accused and some other persons who were also found closely associated with the victim during the relevant period. This is beyond one’s imagination as to how and why such an inquiry is required to be made. The First Information Report, material gathered during the investigation, contents of the victim’s complaint and conclusions drawn by the Special Investigation Team themselves do not justify any such further enquiry.
Thus, we direct the third respondent to make available the material gathered during the course of investigation in Crime No. 381 of 2005 to the Circle Inspector of Police, Chalakuddy (Investigating Officer) within two weeks from the date of the receipt of copy of this order. Thereafter, the Investigating Officer shall submit appropriate report in accordance with the provisions of the Code within four weeks before the Magistrate who shall consider the report to be so filed judicially in accordance with law.
We make it clear that we have not expressed any opinion whatsoever on the merits of the case - Subject to the above directions the impugned order of the High Court is set aside - Appeal is accordingly allowed.
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2008 (3) TMI 733 - SUPREME COURT
Application under Order VI Rule 17 r/w Section 151 CPC for amendment of written statement - seeking permission of the Court to file a written agreement executed between the parties - Long delay in filing the application after closing of evidence and arguments - HELD THAT:- It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness.
As rightly referred to by the High Court in Union of India vs. Pramod Gupta (dead) by LRs and Others, [2005 (9) TMI 618 - SUPREME COURT], this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings.
As observed, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. In spite of long delay, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding cost. As pointed out earlier, when she gave evidence as D.W.1, there was no whisper about the written document/partition between the parties. On the other hand, she asserted that partition was oral. Now by filing the said application, she wants to retract what she pleaded in the written statement, undoubtedly it would deprive the claim of the plaintiff.
We are also satisfied that she failed to substantiate inordinate delay in filing the application that too after closing of evidence and arguments. All these aspects have been considered by the High Court. We do not find any ground for interference in the order of the High Court, on the other hand, we are in entire agreement with the same.
Therefore, the appeal fails and the same is dismissed. No costs. It is made clear that we have not expressed anything on the stand taken by both parties in the suit and it is for the trial Court to dispose of the same uninfluenced by any of the observation made above within a period of three months from the date of receipt of copy of this judgment.
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2008 (3) TMI 732 - CALCUTTA HIGH COURT
Application for condonation of delay - unexplained period leading up to the issuance of the letter by the administrator pendente lite - revocation of the grant of probate was not made earlier - APL (Administrator Pendente Lite) powers - petitioner’s attempt at reopening a challenge that had been scoffed at in the earlier proceedings - legatees insist that Sharad and the petitioner is but the same person and refer to a document that the petitioner has relied upon to show that notwithstanding the petitioner’s feigned ignorance of all matters relating to Kamal Mitra’s Will prior to receipt of the first letter issued by the administrator pendente lite, in the petitioner’s acknowledgement in a declaration furnished to a statutory authority that Sharad was one of its key personnel there is admission of Sharad and the petitioner company being one and the same.
HELD THAT:- If the delay in the petitioner applying for revocation of the probate is condoned, and the petitioner’s apparent right to seek revocation is recognised, the entire process that culminated in the conclusion of the lis by the Supreme Court order would be undone and reopened for fresh adjudication. The matter is not, as the petitioner simplifies and puts it, of the court being liberal in the matter of condonation of delay to allow a right to be canvassed. Equally, the principal issue is not, as the legatees’ suggest, to affix the petitioner with the knowledge that Sharad had and to consequently find the petitioner’s explanation of the delay to be unmeritorious.
Sharad may not have had any legal duty to inform the company (if the company was any more different from himself) upon discovering, although in his capacity as executor, that Reba Mitra had acquired no right to the estate to transfer it to the petitioner. Yet it was so overwhelming a moral duty that a director of a company in Sharad’s place had, even if he were not its controlling shareholder, to inform the company of its imminent loss of its valuable asset, that the fine distinction between a legal duty and a moral duty vanishes. That Sharad had produced and relied upon the petitioner’s lease to assert that notwithstanding Kamal Mitra’s Will his estate passed to his widow, would also show that Sharad was aware that he was also fighting his company’s cause.
To ignore all that has gone on before and to accept the petitioner’s simple case and apparent innocence would lead to gross injustice and undoing the finality that is attached to the result on the substance of the dispute following the Supreme Court verdict.
The result is that the petitioner’s application for condonation of delay fails as the petitioner is deemed to have had notice for a period much prior to the receipt of the administrator pendente lite’s first letter of August 28, 2007 which the petitioner has chosen to ignore for want of any plausible explanation. As a consequence, the petitioner’s application for revocation of the grant is not taken on board, but even if it were it would have to be dismissed for the only issue therein having been decided in favour of the legatees in the earlier proceedings.
The petitioner will pay costs assessed at 2000 GMs. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
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2008 (3) TMI 731 - SUPREME COURT
Contempt proceeding - Requisition for Acquisition of land - declaration u/s 6 of the Land Acquisition Act, 1894 - Grant sanction of plans for construction of buildings - Society deposited the entire amount of compensation - clerical or typographical error has crept in the judgment of the High Court - HELD THAT:- Patna Regional Development Authority (PRDA) is a statutory authority. It has been created by a statute. It was responsible for planned development of the city. For the said purpose, it was under a statutory obligation to grant sanction of plans for construction of buildings. If somebody has made constructions without obtaining any sanction, he must face the consequences therefor. Parameters of the jurisdiction of this Court under the Contempt of Courts Act, 1970 are well-settled. While dealing with such an application, the court is concerned primarily with : (i) whether the order passed by it has attained finality or not; (ii)whether the same is complied with or not.
While exercising the said jurisdiction this court does not intend to reopen the issues which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original proceedings. The court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. In short, it will not do anything which would amount to exercise of its review jurisdiction.
This Court while exercising its jurisdiction under the Contempt of Courts Act or Article 129 of the Constitution of India must strive to give effect to the directions issued by this Court. When the claim of the parties had been adjudicated upon and has attained finality, it is not open for any party to go behind the said orders and seek to take away and/ or truncate the effect thereof. T.R. Dhananjaya v. J. Vasudevan[1995 (8) TMI 329 - SUPREME COURT].
So far as submission of Mr. Srivastava that a clerical or typographical error has crept in the judgment of the Patna High Court is concerned, we are of the opinion that it is not for this court to direct any correction therein.
The functions of the PRDA are now being carried out by Patna Municipal Corporation. The statutory authority, thus, keeping in view the purport and object for which it has been created, in our opinion, must take appropriate action in accordance with law. As indicated, PRDA, the predecessor of Patna Municipal Corporation has given assurance before this Court. We hope it shall implement the same as expeditiously as possible.
The petition is disposed of accordingly with the directions and observations.
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2008 (3) TMI 730 - DELHI HIGH COURT
Liquidation of company - Fraudulent Directors of the company - Non-filing of the statement of affairs by the ex-Directors and failure to produce the records and Accounts Books and assets of the company - Instituted proceedings u/s 454 of the Companies Act against the ex-directors and also to take action u/s 468 and 477 - misappropriation of the funds - Central bureau of Investigation (CBI) to enquire into the matter and submit an enquiry report as early as possible - funds of the Company in liquidation were channeled for the purpose of purchasing the property - Directors and their friends incorporated various business entities apart from the company in liquidation -
Applicants alongwith hundreds of other unsuspecting investors invested their lifelong savings in the company in liquidation on the promise of handsome returns @ 36% p. a. or thereabout - investments have, however, gone bad and the reason for the same is stated to be the misappropriation of the funds collected by the company on the representation, by its Directors, particularly the Managing Director Sh. Sunil Shakt and his wife Mrs. Shilpi shakt.
HELD THAT:- When the fraudulent conduct is undertaken by the Directors of a company, sitting in their own office, with a view to defraud the creditors/investors who, though the victim of the fraud, are not involved in the transactions which constitute such conduct, and may have no personal knowledge of the same.
In K. T. Dharanendrah v. R. T. Authority [1987 (2) TMI 521 - SUPREME COURT] the Supreme Court, while dealing with a case under the Customs Act, 1962 observed that "an economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. "
From the reports of the CBI, prima facie it appears to me that this is a fit case for holding the directors of the company in liquidation personally liable, without any limitation of liability. At the same time, it is equally true that no one can be condemned unheard. The language of Section 542 itself shows that an opportunity has to be given to the concerned persons to lead evidence in support of their case.
The Director Sh. Sunil Shakt and his wife appear to have derived the funds for the purchase of the property directly or indirectly from the business of the company in liquidation. The funds of the company appear to have been siphoned off with the intent to defraud the creditors. The Directors of the company would have known that the withdrawal of the funds from the account of the company in liquidation, inter alia, for the benefit of the directors will result in the creditors being denied not only the handsome returns on their investments as promised, but also put in jeopardy the principal amounts invested by them. From the CBI reports, it appears that the action of the Directors of the Company in liquidation cannot be said to have been undertaken for the purpose of running the business of the company to generate income for the company sufficient to meet its expenses and fulfill its undertaken obligations towards the investors/creditors.
Therefore, direct the official liquidator to forthwith attach the property i. e. second floor and terrace above it. I further direct the SHO of the concerned police station to render all assistance required by the official liquidator in the attachment of the property. I further direct that the evidence in relation to this application be recorded by the Registrar (Companies), and the report be sent to this Court as expeditiously as possible. The applicants may file their affidavits by way of evidence before the Registrar (Companies) within six weeks. The official liquidator shall also place the material available with it on record with an affidavit. For this purpose, the official liquidator is directed to collect the documents, on the basis of which the reports have been prepared by the CBI, and the same be filed in this Court. Copies of the affidavit/documents be exchanged between the parties including Mr. Sunil shakt and Mrs. Shilpi Shakt Shakh through his/their counsel. The official liquidator shall file the affidavit after obtaining the copies within nine weeks. Mr. Shakt may respond to the evidence produced by the applicants and the official liquidator by filing an affidavit by way of evidence within four weeks, thereafter. It shall be open to Mrs. Shilpi Shakt as well to lead her evidence, in case she so desires.
Considering the fact that the applicant is an investor in the company in liquidation and, prima facie, it appears that the ex-Directors of the company have siphoned off the funds of the company, I am inclined to allow these applications. The applicant is, therefore, permitted to continue with the legal proceedings filed against the company as well as the ex-Directors, in view of the orders passed in this case today, this application does not survive.
Dismissed.
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2008 (3) TMI 729 - CESTAT, BANGALORE
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... ... ..... missioner in the impugned order. 3. On a careful consideration of the matter, we find that the Commissioner in the impugned order has accepted the appellants plea to grant benefit of SSI exemption in terms of Notification No. 175/86 CE dated 1.3.86. The assessee submitted the records to show that their dutiable clearance is ₹ 5,44,500/-. They have also shown that they are eligible for the benefit of 10 and the duty is only to be paid at 5 in terms of the Notification. This aspect is required to be reconsidered by the Commissioner. The Commissioner shall re-work out the dutiable clearances and confirm the duty and appropriate penalty is levied in the facts and circumstances of the case after granting an opportunity of hearing to the assessee. The matter is remanded to the Commissioner for de novo consideration on the above noted points. The matter should be disposed of within four months from the date of receipt of this order. (Pronounced and dictated in the open court)
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2008 (3) TMI 728 - JAMMU & KASHMIR HIGH COURT
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... ... ..... ds thereof. 8 Principle laid down by the Apex Court in the above decision could be applied to the facts of the present case and hence two other decisions cited by the learned counsel for the respondents are inapplicable in the facts and circumstances of the case. In Union of India v. Auto Ignition Ltd (2002 (142) E.L.T. 292 (Bom), the Bombay High Court has held that the eligibility to exemption directly relates to rate of duty and hence the only remedy available to the Union of India was to invoke section 35 -L of the Act. 9 The question involved in the case on hand is whether the Unit has satisfied the locational eligibility, which in our view has no relation with the rate of duty or value of goods for the purposes of assessment. That being the factual and legal position, we hold that the appeal filed by the Union of India is maintainable in this Court under section 35G of the Act. Preliminary objection raised by respondent is rejected. The appeal is admitted. Issue notice.
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