|
Advanced Search Options
Case Laws
Showing 41 to 60 of 986 Records
-
2009 (7) TMI 1363
Issues Involved:
1. Whether the Court can restrain the defendant from transferring or alienating his property during the pendency of a money suit.
2. Whether the Court can grant an order of attachment before judgment or direct the defendant to furnish security in the absence of specific averments under Order 38 Rule 5 of the Code of Civil Procedure (CPC).
Issue-wise Detailed Analysis:
1. Restraining the Defendant from Transferring Property in a Money Suit:
The primary issue was whether a court could restrain a defendant from transferring or alienating his property during the pendency of a money suit. The court examined the provisions of Order 39 Rule 1 of the CPC, which allows for temporary injunctions if any property in dispute is in danger of being wasted, damaged, or alienated, or if the defendant threatens to dispose of his property to defraud creditors. However, the court found that the suit was for the recovery of money, and the immovable property described in Schedule 'A' of the plaint was not "property in dispute in the suit" within the meaning of Order 39 Rule 1. The subject matter of the suit was the recovery of Rs. 1 crore and odd claimed in the plaint, not the immovable property itself. Therefore, clauses (a) and (c) of Order 39 Rule 1 were inapplicable, and clause (b) required specific allegations that the defendant intended to defraud creditors, which were absent in this case.
2. Attachment Before Judgment or Furnishing Security:
The second issue was whether the court could grant an order of attachment before judgment or direct the defendant to furnish security without specific averments under Order 38 Rule 5 of the CPC. The court referred to the Supreme Court's decision in Raman Tech & Process Eng. Co. v. Solanki Traders, which emphasized that the power under Order 38 Rule 5 is drastic and extraordinary and should not be exercised mechanically. The plaintiff must show that the defendant intends to obstruct or delay the execution of any decree by disposing of or removing property. The court found the plaintiff's allegations vague and insufficient to warrant such an order. There was no specific claim that the defendant was attempting to remove or dispose of property to obstruct or delay execution of a potential decree.
Inherent Powers Under Section 151 CPC:
The court also considered whether it could use its inherent powers under Section 151 of the CPC to grant the injunction or attachment. It referred to the Supreme Court's decision in Manohar Lal v. Rai Bahadur Rao Raja Seth Hiralal, which stated that inherent powers are to be used in exceptional circumstances where the Code provides no procedure. However, the court concluded that using inherent powers to restrict the defendant's substantive rights over his property was inappropriate in this case. The provisions of Section 94 and the relevant orders in the CPC already provided the necessary procedures for such situations.
Conclusion:
The court concluded that both applications filed by the plaintiff, one under Order 39 and the other under Order 38, should be dismissed as the conditions for invoking these provisions were not met. Furthermore, there was no scope for granting relief under Section 151 of the CPC. Consequently, the appeal filed by the defendants was allowed, and the appeal filed by the plaintiffs was dismissed, with no order as to costs.
-
2009 (7) TMI 1362
Issues Involved:
1. Authorization of Malook Singh as general attorney.
2. Validity of the judgment and decree dated 10.2.1988.
3. Entitlement of plaintiffs to joint possession.
4. Claim of adverse possession by defendant No.1.
5. Jurisdiction of the civil court.
6. Maintainability of the suit.
7. Time-barred nature of the suit.
8. Locus-standi of the plaintiffs.
Issue-wise Detailed Analysis:
1. Authorization of Malook Singh:
Issue: Whether Malook Singh is duly authorized as the general attorney of the plaintiff.
Analysis: The court examined if Malook Singh, as the special power of attorney, could replace the plaintiff to prove the nature of the transactions. It was concluded that Malook Singh, appointed in 1990, could not testify on matters that occurred in 1966, which were in the specific knowledge of the plaintiffs. The court cited the case of Janki Vashdeo Bhojwani vs. Indusind Bank Limited, emphasizing that a power of attorney holder cannot depose for the principal on matters requiring personal knowledge.
2. Validity of the Judgment and Decree Dated 10.2.1988:
Issue: Whether the judgment and decree dated 10.2.1988 are null and void.
Analysis: The court found that the ex-parte decree obtained by the defendant No.1 on 10.2.1988, claiming ownership by adverse possession, was binding upon the plaintiffs as it was not set aside. The decree was considered valid and binding as it was obtained legally.
3. Entitlement of Plaintiffs to Joint Possession:
Issue: Whether the plaintiffs are entitled to joint possession of the suit land.
Analysis: The plaintiffs claimed ownership based on sale deeds from 1966 and 1967. However, the court noted that the original sale deeds were never produced, and the transactions were not acted upon for 24-25 years. The court concluded that the sale deeds were sham transactions intended to avoid land ceiling laws and did not confer ownership to the plaintiffs.
4. Claim of Adverse Possession by Defendant No.1:
Issue: Whether defendant No.1 has become the owner by adverse possession.
Analysis: The court held that defendant No.1's possession since 1966 did not ripen into adverse possession as the sale deeds were sham transactions. However, the court recognized the defendant's alternative plea of adverse possession against Rajinder Krishan and Kewal Krishan, which was validated by the decree dated 10.2.1988.
5. Jurisdiction of the Civil Court:
Issue: Whether the civil court has jurisdiction to entertain the suit.
Analysis: The court found that the civil court had jurisdiction to entertain the suit, dismissing the defendant's claim to the contrary.
6. Maintainability of the Suit:
Issue: Whether the suit is maintainable in the present form.
Analysis: The court concluded that the suit was maintainable, rejecting the defendant's plea that it was not.
7. Time-barred Nature of the Suit:
Issue: Whether the suit is time-barred.
Analysis: The court held that the suit was not time-barred, dismissing the defendant's claim that the suit was filed beyond the permissible time limit.
8. Locus-standi of the Plaintiffs:
Issue: Whether the plaintiffs have the locus-standi to file the suit.
Analysis: The court determined that the plaintiffs did not have the locus-standi to file the suit as the sale deeds were sham transactions and did not confer any title or ownership upon them.
Conclusion:
The court accepted the appeal, set aside the impugned judgment and decree, and dismissed the suit of the plaintiffs. The plaintiffs failed to prove their ownership, and the transactions were deemed sham and fictitious. The defendant No.1's claim of adverse possession was validated, and the civil court's jurisdiction and the maintainability of the suit were affirmed. The parties were left to bear their own costs.
-
2009 (7) TMI 1361
Issues Involved:
1. Validity of the Assignment Deed dated 1.4.1999.
2. Jurisdiction and role of the Registrar under Section 45 of the Trade Marks Act, 1999.
3. Applicability of the principles of natural justice in the Registrar's decision.
4. The impact of the Memorandum of Partition on the Assignment Deed.
5. The High Court's power under Articles 226 and 227 of the Constitution of India.
Detailed Analysis:
1. Validity of the Assignment Deed dated 1.4.1999:
The Petitioner argued that the Assignment Deed dated 1.4.1999 was void ab initio due to legal infirmities, non-payment of consideration, and breach of the Memorandum of Partition (MoP). The Petitioner claimed that the assignment was invalid as it exceeded the scope of goods envisaged in the MoP. The Respondent countered that the assignment was valid, and any dispute regarding its validity should be resolved by a competent court. The court concluded that no legal infirmity was apparent on the face of the Assignment Deed and that the Petitioner had not taken steps to seek its cancellation through a civil court.
2. Jurisdiction and role of the Registrar under Section 45 of the Trade Marks Act, 1999:
The Registrar's role under Section 45 is quasi-judicial, requiring satisfaction that the assignment is valid and does not violate the provisions of the Trade Marks Act. The Registrar is not to adjudicate disputes between the assignor and assignee but must ensure the assignment deed is free from legal infirmities. The court held that the Registrar correctly registered the assignment as there was no dispute pending in a competent court regarding the validity of the assignment.
3. Applicability of the principles of natural justice in the Registrar's decision:
The Petitioner contended that the Registrar's decision violated the principles of natural justice as the assignment was recorded despite its revocation. The court found that the Registrar's actions were within the scope of his quasi-judicial functions and that the Petitioner had not demonstrated any pending dispute or legal action challenging the assignment's validity at the time of registration.
4. The impact of the Memorandum of Partition on the Assignment Deed:
The Petitioner argued that the Assignment Deed was a corollary to the MoP and that the Registrar should have considered the MoP's terms. The court noted that the MoP and the Assignment Deed were executed separately, and any breach of the MoP should be addressed through appropriate legal channels. The court found that the Registrar was not required to go beyond the terms of the assignment deed.
5. The High Court's power under Articles 226 and 227 of the Constitution of India:
The court reiterated that its powers under Articles 226 and 227 are supervisory and not appellate. The High Court should not interfere with findings of fact unless there is a grave miscarriage of justice or flagrant violation of law. The court held that there was no such miscarriage of justice or violation in the Registrar's decision to register the assignment.
Conclusion:
The court dismissed the petition, finding no merit in the Petitioner's arguments. The Registrar's decision to register the assignment was upheld as it was within his quasi-judicial functions, and no valid dispute regarding the assignment's validity was pending in any competent court. The court emphasized the need for the Petitioner to seek relief through appropriate legal channels if it believed the assignment was invalid.
-
2009 (7) TMI 1360
Issues Involved:
1. Alleged illegal issuance and allotment of 3,000 shares.
2. Appointment of the fourth respondent as the managing director.
3. Validity of annual general meetings for the years 2005-06 and 2006-07.
4. Allegations of misconduct and diversion of funds by the petitioners.
Summary:
1. Alleged Illegal Issuance and Allotment of 3,000 Shares:
The petitioners alleged that respondents Nos. 2 to 6 illegally issued 3,000 shares of Rs. 100 each at a premium of Rs. 400 per share to respondents Nos. 9 to 13. The petitioners sought a declaration that the allotment of these shares was illegal and void. The respondents claimed the shares were issued to raise funds to pay farmers for potatoes stored in the cold storage. However, the Board found that the respondents failed to provide adequate documentation to support this claim. The bank statements provided by the respondents showed suspicious transactions, indicating possible rotation of funds. The Board concluded that the allotment of shares was dubious and declared it null and void.
2. Appointment of the Fourth Respondent as the Managing Director:
The petitioners challenged the appointment of the fourth respondent as the managing director, alleging it was done without proper notice to the petitioner-directors. The Board found that there was no evidence of notice being given for the board meeting on February 5, 2007, where the appointment was allegedly made. Additionally, Form No. 32 for the appointment was filed belatedly on October 25, 2007, raising doubts about the validity of the appointment. The Board declared the appointment null and void.
3. Validity of Annual General Meetings for the Years 2005-06 and 2006-07:
The petitioners contended that the annual general meetings for the years 2005-06 and 2006-07 were held without proper authority and notice. The Board noted that the annual general meeting for 2004-05 was convened on April 21, 2007, under the supervision of a special officer appointed by the Board. The Board found no evidence that the respondents had sent notices for the alleged annual general meetings for 2005-06 and 2006-07. Consequently, the Board declared these meetings and the decisions taken therein, including the appointment of respondent directors, as null and void.
4. Allegations of Misconduct and Diversion of Funds by the Petitioners:
The respondents accused the petitioners of diverting funds and acting against the interests of the company. They alleged that the fourth petitioner had diverted Rs. 5.18 lakhs to Cameo Steel P. Ltd. and withdrawn Rs. 7.44 lakhs, which remained un-refunded. The respondents had filed criminal cases against the petitioners for these actions. The Board noted these allegations but focused on the main issues of share allotment and appointments.
Conclusion:
The Board canceled the allotment of the impugned 3,000 shares and declared all decisions taken by the respondents, including the annual general meetings for 2005-06 and 2006-07, as null and void. The appointment of the fourth respondent as the managing director was also declared null and void. The petitioners' suggestion to direct the respondents to sell their shares to the petitioners was not accepted due to the lack of identification of all shareholders in the respondents' group. However, the respondents were given the liberty to express their intention to sell their shares to the petitioners, with the price to be determined by an independent valuer if needed. The petition was disposed of in these terms, reserving the right to appoint a valuer if an application is made after the respondents' group exercises the option to sell their shares.
-
2009 (7) TMI 1359
Issues involved: Appeal u/s 260A of the Income-tax Act against an order passed by ITAT Indore regarding re-opening of assessment u/s 148 for the year 1992-93.
Summary:
Re-opening of Assessment u/s 148:
The appeal was filed by the Commissioner of Income-tax u/s 260A against an order passed by ITAT Indore regarding the re-opening of assessment for the year 1992-93 u/s 148 of the Income-tax Act. The Assessing Officer initiated action u/s 148 for re-opening the assessment, which was challenged by the assessee before CIT (Appeals). CIT (Appeals) held that there was no justifiable reason for the issuance of notice u/s 148 due to lack of material. The Tribunal upheld the order of CIT (Appeals) and dismissed the appeal filed by the Revenue. The High Court observed that there was no substantial question of law in the appeal and agreed with the authorities that the report of Inspector was not sufficient to warrant the issuance of notice u/s 148 for re-opening the assessment. The alleged report did not contain material evidence to justify the re-opening. The Court concluded that it was a pure question of fact, and hence, dismissed the appeal.
In conclusion, the High Court dismissed the appeal in limine as it found no merit in the case after considering the lack of substantial question of law and the insufficiency of material to justify the re-opening of assessment u/s 148.
-
2009 (7) TMI 1358
Issues involved:
Challenging transfer orders of two Sub-Registrars by the High Court of Allahabad at Lucknow.
Details of the judgment:
1. Background:
The Writ Petitioner and Respondent No. 5, both Sub-Registrars in the revenue service of Uttar Pradesh, challenged their transfer orders issued by the I.G. Registration. Writ Petitioner was transferred to Hapur-II and Respondent No. 5 to Ghaziabad-IV.
2. Arguments:
Writ Petitioner alleged his transfer was arbitrary, stigmatic, and based on a complaint, while also questioning the suitability of Respondent No. 5 due to pending vigilance inquiries. State Government defended the transfers on administrative grounds.
3. Legal Principles:
Government employees have no vested right to remain at a specific place, and transfers are essential for administrative efficiency. Courts should only interfere in transfers if there are statutory violations or mala fides involved.
4. High Court's Decision:
The High Court upheld the transfer of the Writ Petitioner but quashed the transfer of Respondent No. 5, citing concerns about his conduct and integrity. However, the Supreme Court found the High Court's scrutiny into the officers' suitability for posting as beyond its jurisdiction.
5. Supreme Court's Ruling:
The Supreme Court set aside the High Court's decision to quash the transfer of Respondent No. 5, emphasizing that the High Court's assessment of the officer's competence was unwarranted. The Court clarified that the transfer of the Writ Petitioner was not stigmatic, and any adverse observations in the order should not prejudice him.
6. Conclusion:
The appeal of Respondent No. 5 was allowed, and the appeal of the Writ Petitioner was dismissed. Each party was directed to bear their own costs.
-
2009 (7) TMI 1357
Issues Involved:
The issue involves the interpretation of pay fixation for government employees u/s Rule 74(b) of the Orissa Service Code versus government circulars dated April 16, 1971, June 18, 1982, and March 17, 1983.
Issue 1: Pay Fixation - Rule 74(b) of the Orissa Service Code vs. Government Circulars
The appellant, appointed as Overseer (Electrical) by the Government of Orissa, challenged the fixation of his pay upon promotion to Assistant Engineer. The Tribunal directed his pay to be fixed as per Rule 74(b) of the Code, ensuring no reduction in pay on promotion. The State Government challenged this decision, arguing inconsistency with Circulars dated June 18, 1982 and March 17, 1983. The High Court, relying on the Circular dated April 16, 1971, directed pay fixation for the appellant as Assistant Engineer, resulting in a reduction in pay. The appellant appealed to the Supreme Court.
Issue 2: Interpretation of Rule 74(b) of the Orissa Service Code
Rule 74(b) of the Orissa Service Code mandates that upon promotion, a government servant's initial pay in the higher post should not be less than the pay received in the lower post. This rule aims to protect the scale of pay of an employee in the promotional cadre, ensuring they receive higher emoluments post-promotion. The rule safeguards against any reduction in pay for the employee upon promotion, emphasizing the importance of maintaining or increasing the employee's pay level.
Issue 3: Supremacy of Statutory Rules over Government Circulars
The Circulars dated June 18, 1982, March 17, 1983, and April 16, 1971, issued by the government, cannot override the statutory provision of Rule 74(b) of the Orissa Service Code if they result in a reduction of pay for the employee upon promotion. It is established that Statutory Rules framed under Article 309 of the Constitution can only be amended through proper legal procedures, not by executive orders or circulars. In this case, the appellant's pay fixation must adhere to Rule 74(b) of the Code, as it prevails over conflicting government circulars.
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the Tribunal's decision. The appellant's pay is to be fixed in accordance with Rule 74(b) of the Orissa Service Code, ensuring no reduction in pay upon promotion. The State Government's challenge was dismissed, emphasizing the statutory protection provided by Rule 74(b) for government employees' pay fixation during promotions.
-
2009 (7) TMI 1356
The High Court of Karnataka, in a judgment dated 2009 (7) TMI 1356, heard an appeal filed by a plaintiff against a trial court order rejecting his application under Order 39 Rules 1 and 2 of CPC. The plaintiff filed a suit for permanent injunction and an application for temporary injunction, which was initially granted ex parte by the trial court. However, the trial court later rejected the application, resulting in the plaintiff filing an appeal. The High Court directed the parties to maintain status quo regarding possession of the suit property until the suit's disposal and ordered the trial court to expedite the suit's resolution. The High Court also set aside the cost imposed by the trial court. The judgment was delivered by Mr. B. Sreenivase Gowda, J. with legal representation from Sri. H.P. LeeIadhar and Sri. S. Gangadhara Aithal. The appeal was disposed of with these observations and directions.
-
2009 (7) TMI 1355
Issues Involved:
1. Application under Order VII Rule 11 CPC for rejection of the plaint.
2. Allegation of the suit property being a joint family property.
3. Plea of the property being held in a fiduciary capacity.
4. Applicability of the Benami Transactions (Prohibition) Act, 1988.
5. Limitation for filing the suit.
Issue-wise Detailed Analysis:
1. Application under Order VII Rule 11 CPC for rejection of the plaint:
The appellant (defendant No.1) filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure seeking rejection of the plaint. The learned Single Judge dismissed this application, and the appellant challenged this dismissal. The court noted that for the purpose of deciding an application under Order VII Rule 11 CPC, only the averments in the plaint should be considered, and not the defense or documents presented by the defendants. The court emphasized that rejection of a plaint is a serious matter and should only be done when the conditions mentioned in Order VII Rule 11 CPC are strictly met.
2. Allegation of the suit property being a joint family property:
The plaintiffs claimed that the property at 6, Cavalry Lines, Mall Road, Delhi, was purchased as a joint family property by Late S. Sucha Singh Anand and Plaintiff No.3. The conveyance deed was executed in the name of defendant No.1, who was to hold the property as a trustee for the entire family. The property was alleged to be purchased for the benefit of all family members and had been in their possession and enjoyment. The plaintiffs argued that the property was treated as joint family property throughout, and the entitlement of other legal heirs was never disputed.
3. Plea of the property being held in a fiduciary capacity:
The plaintiffs contended that defendant No.1 held the property in a fiduciary capacity as a trustee for the benefit of the entire family. The learned Single Judge found that the plaintiffs had specifically pleaded the existence of a trust and that the property was held by defendant No.1 as a trustee for the family members. The court noted that whether the property was actually held in a fiduciary capacity could only be determined after a full-fledged trial and recording of evidence.
4. Applicability of the Benami Transactions (Prohibition) Act, 1988:
The appellant argued that the suit was barred by the Benami Transactions (Prohibition) Act, 1988, as the property was purchased in the name of defendant No.1 and the plaintiffs' case was essentially that of a Benami transaction. The court referred to Section 4 of the Benami Act, which prohibits the right to recover property held Benami, but noted the exceptions provided in sub-section (3) of Section 4. The court found that the plaintiffs had brought out a case within the exceptions, specifically pleading that the property was held by a coparcener in a Hindu Undivided Family or in a fiduciary capacity as a trustee.
5. Limitation for filing the suit:
The appellant contended that the suit was barred by limitation, arguing that the plaintiffs should have sought cancellation of the sale deed within three years of its registration. The learned Single Judge rejected this contention, noting that the plaintiffs were not seeking cancellation of the sale deed but were claiming that the property was joint family property. The court observed that the plaintiffs' right to seek declaration commenced only after the defendant No.1 published a notice in the Statesman on 22.07.2006, which led to the filing of the suit on 18.08.2006.
Conclusion:
The court concluded that the plaintiffs had specifically pleaded the existence of a Hindu Undivided Family and the holding of the property by defendant No.1 for the benefit of the coparceners. The court agreed with the learned Single Judge that the question of whether a Hindu Joint Family existed or whether the property was held in a fiduciary capacity could only be decided after a trial. The appeals were dismissed, and the order of the learned Single Judge was upheld.
-
2009 (7) TMI 1354
Issues Involved:
1. Maintainability of Company Petition No. 61 of 2006.
2. Allegations of oppression and mismanagement.
3. Validity of share transfer and ownership.
4. Jurisdiction of the Company Law Board (CLB).
Detailed Analysis:
1. Maintainability of Company Petition No. 61 of 2006:
The primary issue was whether the petitioner had the requisite qualification under Section 399 of the Companies Act, 1956, to maintain the petition under Sections 397 and 398. The respondents argued that the petitioner was neither a "member" nor a "shareholder" of the company as per statutory requirements. The petitioner contended that he was a shareholder and that his shares were fraudulently transferred. The CLB noted that the petitioner had been treated as a member by the company and held shares, although these were allegedly transferred. The CLB concluded that the petitioner had the requisite qualification under Section 399, as there was a prima facie case of fraud and manipulation in the transfer of shares.
2. Allegations of Oppression and Mismanagement:
The petitioner alleged several acts of oppression and mismanagement, including the illegal forfeiture of his shares, denial of access to company documents, and fraudulent manipulation of records. The respondents countered that the petitioner had sold his shares and resigned from the company. The CLB found that there were significant discrepancies and evidence of forgery in the company's records, including manipulated minutes of meetings and fabricated documents. The CLB held that the petitioner had made a prima facie case of oppression and mismanagement.
3. Validity of Share Transfer and Ownership:
The petitioner claimed that his shares were fraudulently transferred without his consent. The respondents argued that the petitioner had transferred his shares and received consideration. The CLB noted that the share transfer forms and resignation letters appeared to be fabricated, with discrepancies in dates and signatures. The CLB found that the petitioner's shares were transferred without proper authorization and that the consideration shown was inadequate. The CLB held that the petitioner's claim to shares could be adjudicated under Section 397/398 of the Act.
4. Jurisdiction of the Company Law Board (CLB):
The respondents argued that the CLB had no jurisdiction to entertain the petition as the disputes were inter se between the petitioner and respondent No. 2, who were not members of the company. The CLB, however, held that it had jurisdiction to adjudicate the petitioner's entitlement to become a member and to address issues of oppression and mismanagement. The CLB emphasized that the provisions of Sections 397 to 409 of the Act constitute a code by themselves and confer wide powers on the CLB, including the power to give directions contrary to other provisions in the Act.
Conclusion:
The CLB dismissed Company Applications Nos. 325 of 2006 and 201 of 2009, holding that the petitioner had the requisite qualification under Section 399 to maintain the petition under Section 397/398. The CLB found a prima facie case of fraud, cheating, and manipulation in the company's records and held that the petitioner's claim to shares could be adjudicated under the said sections. The company petition was scheduled for further hearing on August 19, 2009.
-
2009 (7) TMI 1353
Issues involved: Interpretation of Section 2(ea)(vi) of the Wealth Tax Act regarding the treatment of cash-in-hand exceeding Rs. 50,000 in the hands of individual assessees as part of their assets.
Summary:
The High Court of Kerala heard Wealth Tax Appeals filed by the Revenue challenging the Tribunal's decision that cash-in-hand exceeding Rs. 50,000 in the hands of individual assessees does not form part of their assets u/s 2(ea)(vi) of the Wealth Tax Act. The assessees argued that cash-in-hand is a business asset and not to be treated as an asset under the Act. They relied on the Finance Minister's speech and Supreme Court decisions for exemption. The Court analyzed the amendments to the Wealth Tax Act and the recommendations of the Chelliah Committee, which led to the identification of non-productive assets subject to wealth tax. The Court clarified that cash-in-hand exceeding Rs. 50,000 is assessable for individuals and HUF, while for companies, it is the amount not recorded in the books of accounts. The Court rejected the argument that cash-in-hand should be excluded as a productive asset, emphasizing that the Act identifies non-productive assets for taxation. The Court noted that cash in bank accounts is excluded as it is used for business purposes, unlike cash-in-hand. The Court upheld the departmental appeals, ruling that cash-in-hand exceeding Rs. 50,000 held by individual assessees is part of their assets under Section 2(ea)(vi) of the Act.
-
2009 (7) TMI 1352
Abducting minor girl and commiting rape on her - Offence punishable u/s 376 of IPC - Statement of the prosecutrix recorded u/s 164 Cr.P.C. - whether a case of no consent? - trial court found appellant guilty of the offence punishable u/s 376 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of ₹ 2,000/- in default to undergo imprisonment for another six months - On appeal, The High Court upheld the conviction u/s 376 IPC but reduced the sentence to a period of four years and to pay a fine of ₹ 1000/- in default to further imprisonment for one month. Hence this appeal.
HELD THAT:- The Trial Court and the High Court proceeded with altogether different set of facts. Before the trial Court the prosecution case had been that the prosecutrix went to zoo along with Suleman and on her return from zoo the appellant had seen both of them together and slapped Suleman who ran away and thereafter the appellant took the prosecutrix on the pretext of taking her to movie and roamed; took her on a rickshaw to the hotel where she was kept and raped.
However, before the High Court the case has been entirely different as in paragraph 5 of the High Court judgment it has been stated that when the prosecutrix came out from the house of informant PW.2 Abdul Hai Laskar the appellant met her and proposed to take her to witness a movie and she went along with him. The High Court has mentioned the facts that as per the FIR lodged by PW.2 Abdul Hai Laskar, to the effect that "on the previous evening, the accused appellant Musauddin Ahmed @ Musa entered into the house and forcibly abducted his maid servant."
There had been material contradictions regarding the factual aspects of the incident itself. There is nothing on record to show or furnishing any explanation as to why the IO did not seize any material objects like, clothes, blood samples etc. from the prosecutrix and the place of occurrence.
PW.4 Mira Begum, prosecutrix has stated in her examination in chief as under: "He took me to a room at Paltan Bazar. There the accused forcibly tears open my clothes." The torn clothes were not recovered by the IO.
The I.O. did not make any effort to take the semen, blood samples etc. from the appellant which could have given the prosecution an opportunity to obtain medical reports of the appellant as it was necessary to establish the guilt of the appellant.
No person has been examined from the hotel to identify the appellant or the prosecutrix as the I.O. has only seized the register of the hotel to establish that room No.102 was booked in the name of appellant Mussauddin Ahmed and Marzina Begum as husband and wife. Admittedly, the name of the prosecutrix was not Marzina Begum. Therefore, some person from the hotel should have been examined to identify her as well as the appellant.
The prosecutrix appears to be a lady used to sexual intercourse and a dissolute lady. She had no objection in mixing up and having free movement with any of her known person, for enjoyment. Thus, she appeared to be a woman of easy virtues.
We are of the considered opinion that the prosecution failed to prove its case against the appellant beyond reasonable doubt. The appeal is allowed. The impugned judgment of the High Court and the trial court are set aside. Appellant is acquitted of the charge u/s 376 IPC. The appellant is on bail. His bail bonds are discharged.
-
2009 (7) TMI 1351
Issues involved: Determination of nature of expenses claimed in income tax return as capital or revenue expenses, imposition of penalty u/s 271(1)(c) of the Income-tax Act, 1961.
In the present case, the assessee claimed payment of technical fee, marketing research expenses, and advertisement and publicity expenses as revenue expenses in its income tax return. The Assessing Officer concluded that these expenses were capital in nature, leading to the initiation of penalty proceedings u/s 271(1)(c) of the Income-tax Act, 1961, resulting in a penalty of Rs. 24,14,690. The CIT(A) overturned the Assessing Officer's order, and upon further appeal by the revenue, the Income Tax Appellate Tribunal upheld the CIT(A)'s decision. The ITAT noted a divergence of opinion on the nature of the expenditure, indicating a debatable legal issue. It emphasized that the mere non-filing of an appeal against the addition does not establish concealment or furnishing of inaccurate particulars of income. The ITAT found the claim to be bona fide and a contentious legal issue, thereby ruling out the imposition of penalty for concealment. Consequently, the Court held that no substantial question of law arose for consideration, leading to the dismissal of the appeal.
-
2009 (7) TMI 1350
Issues Involved:
1. Legitimacy of the detention order u/s COFEPOSA Act.
2. Non-disclosure of newspaper particulars.
3. Impounding of passport and its impact on future activities.
4. Single incident of smuggling as a basis for detention.
5. Denial of legal assistance before the Advisory Board.
Summary:
1. Legitimacy of the Detention Order u/s COFEPOSA Act:
The petitioner challenged the detention order dated 4.11.2008 issued u/s COFEPOSA Act. The Court reviewed the affidavit, grounds of attack, and all materials including the detention order. The petitioner was intercepted on 7.9.2008 at Chennai Airport with a suitcase containing foreign and Indian currencies worth Rs. 40,72,878/-, which were smuggled. The detenu admitted to carrying the currencies for monetary benefits. The authorities recommended invoking COFEPOSA Act to prevent future activities, and the Advisory Board affirmed the detention order.
2. Non-disclosure of Newspaper Particulars:
The petitioner argued that the newspapers containing the currencies were from Singapore, but this fact was not mentioned in the records. The Court found no merit in this contention, stating that the non-mentioning of the date or origin of the newspapers was of no consequence. The Court rejected the argument that the insertion of words in the statement indicated interpolation.
3. Impounding of Passport and Its Impact on Future Activities:
The petitioner contended that since his passport was impounded, he could not indulge in future smuggling activities. The Court rejected this argument, stating that the detenu could still commit acts of abetment or move out illegally. Mere impounding of the passport was not sufficient to tilt the order under challenge.
4. Single Incident of Smuggling as a Basis for Detention:
The petitioner argued that a single incident of smuggling did not justify detention u/s COFEPOSA Act. The Court held that even a single incident could suffice if the detenu had the propensity and potentiality to continue such activities. The Court noted that the petitioner, a foreign national, was involved in smuggling currencies from different countries, indicating a likelihood of future offenses. Thus, the Court rejected this ground.
5. Denial of Legal Assistance Before the Advisory Board:
The petitioner claimed that his request for legal assistance before the Advisory Board was denied. The Court noted that the representation for legal assistance was made to the State Government, not directly to the Advisory Board. The Court held that the detenu should have requested legal assistance when appearing before the Advisory Board. Since no such request was made, the Court found no merit in this contention.
Conclusion:
The Court dismissed the Habeas Corpus Petition, finding no merit in the grounds raised by the petitioner.
-
2009 (7) TMI 1349
Issues involved: Application to summon Counsel as a witness without consent, interpretation of Section 126 of the Indian Evidence Act.
Summary:
The respondent filed a suit for specific performance against the revision petitioners based on a sale agreement. During the proceedings, the respondent sought permission to summon a Counsel as a witness to support his claim that the petitioners consulted the Counsel for legal advice regarding their status as legal heirs. The revision petitioners opposed this, arguing that the Counsel cannot be called as a witness without their consent. The trial Judge allowed the application, prompting the revision petitioners to file a civil revision petition challenging this decision.
The crux of the matter revolved around the interpretation of Section 126 of the Indian Evidence Act, which prohibits disclosure of professional communications by a Counsel without the client's express consent, except in cases involving illegal purposes, crimes, or fraud. The respondent contended that the Counsel was bound to give evidence regarding the communication made for filing the civil suit, falling under the purview of Section 126. However, the revision petitioners argued that the Counsel should not be permitted to testify without their consent.
The Judge highlighted the dual purpose of Section 126, emphasizing the protection it offers to both parties and Counsel. The Judge noted that compelling a Counsel to disclose confidential communications could lead to complications for both the Counsel and the client, as the Counsel's role is to represent the client's interests without personal involvement. The Judge also referenced a Kerala High Court judgment to distinguish situations where a Counsel's testimony may or may not be admissible under Section 126.
Ultimately, the Judge found that the trial Judge erred in allowing the Counsel to be summoned as a witness without the revision petitioners' consent. The impugned order was set aside, and the civil revision petition was allowed, with no costs awarded.
In conclusion, the judgment clarified the importance of client confidentiality in legal proceedings and upheld the principle that a Counsel should not be compelled to disclose professional communications without the client's consent, as mandated by Section 126 of the Indian Evidence Act.
-
2009 (7) TMI 1348
Issues Involved:
1. Validity of the extension of service for the Chief Secretary of Maharashtra.
2. Compliance with Rule 16(1) of the All India Services (Death cum Retirement Benefit) Rules, 1958.
3. Public interest and justification for the extension.
4. Maintainability of the writ petitions as Public Interest Litigations (PIL).
Detailed Analysis:
1. Validity of the Extension of Service:
The petitioners challenged the extension of service of the Chief Secretary of Maharashtra, arguing that it was not in public interest and was politically motivated. They contended that the extension did not comply with Rule 16(1) of the All India Services (Death cum Retirement Benefit) Rules, 1958, which generally limits extensions to three months and only under specific conditions.
2. Compliance with Rule 16(1):
The petitioners argued that the extension exceeded the permissible period under Rule 16(1) and was not justified by public interest. They cited a previous judgment (R.R. Tripathi v. Union of India) to support their claim that the extension was arbitrary and violated Articles 14 and 16 of the Constitution. The respondents, however, maintained that the extension was justified and in public interest, and that the decision-making process was transparent and followed due procedure.
3. Public Interest and Justification:
The court examined whether the extension was justified and in public interest. The respondents provided a detailed proposal outlining the necessity of the Chief Secretary's continued service for various public projects and security measures, especially in the wake of the 26/11 terrorist attacks. The court found that the proposal demonstrated full justification and public interest, satisfying the requirements of Rule 16(1). The court emphasized that it was not its role to assess the soundness of the decision but to ensure that the decision-making process was just, fair, and in accordance with law.
4. Maintainability of the Writ Petitions as PIL:
The respondents questioned the maintainability of the writ petitions as PILs, arguing that they related to service matters. The court, however, held that the petitions were maintainable as PILs because they concerned the highest administrative post in the state and had significant public interest implications. The court noted that the issue at hand transcended mere service matters and involved larger public interest considerations.
Conclusion:
The court dismissed the writ petitions, finding that the extension of the Chief Secretary's service was justified, in public interest, and complied with Rule 16(1) of the All India Services (Death cum Retirement Benefit) Rules, 1958. The court emphasized that its role was to review the decision-making process, not the decision itself, and found no arbitrariness or illegality in the process. The petitions were held to be maintainable as PILs due to the significant public interest involved.
-
2009 (7) TMI 1347
Issues involved: Challenge against SEBI order u/s 3(4) read with sections 11 and 11B of SEBI Act, 1992 and SEBI (Disclosure and Investor Protection) Guidelines, 2000 for directing refund of money collected under a share issue.
Summary:
1. The petitioners, a public limited company and its directors, challenged SEBI's order (exhibit P8) directing refund of money collected under a share issue. The company declared a right issue of shares to existing shareholders, allowing renunciation of shares to others, citing compliance with section 81(1)(c) of the Companies Act, 1956. Dispute arose over violation of section 67 of the Act by privately placing shares to more than 50 persons. SEBI contended that the offer of right shares with renunciation rights amounted to a public offer, leading to the order for refund. The company challenged the order on jurisdictional grounds, invoking section 55A of the Companies Act conferring powers on SEBI only for listed public companies or those intending to list shares.
2. The petitioners argued lack of jurisdiction for SEBI to issue the order, as the company did not fall within the categories specified under section 55A of the Companies Act. SEBI's contention that the offer of shares constituted a public issue was refuted, emphasizing the Central Government's authority for matters not covered under section 55A(a) and (b). The court held that SEBI could not assume jurisdiction based on a deemed public issue, as the Central Government had already considered and dropped the matter.
3. The court quashed SEBI's order (exhibit P8) for lack of jurisdiction, allowing the writ petition challenging the order. Despite SEBI's argument for an alternate remedy under section 15D of the SEBI Act, the court found the order to be issued without jurisdiction, thus upholding the petitioners' challenge on this ground.
-
2009 (7) TMI 1346
The Supreme Court dismissed the case in the citation 2009 (7) TMI 1346. Judges were Mr. S.H. Kapadia and Mr. Aftab Alam.
-
2009 (7) TMI 1345
Issues involved: Addition of expenses without proper vouchers, Non-charging of interest on advances, Allowance of interest liability not debited in books of account.
Addition of Expenses without Proper Vouchers:
The first issue pertains to the addition of expenses amounting to Rs. 30,65,300/- for various categories like rent, office maintenance, sales promotion, conveyance, legal charges, and others for A.Y. 2002-03. The Assessing Officer disallowed these expenses citing lack of proper vouchers and documentary evidence. However, the CIT(A) found the disallowance to be baseless and without any valid justification. The CIT(A) noted that the assessee had produced vouchers, filed all required details, and maintained regularly audited books of account. The Tribunal concurred with the CIT(A) and upheld the deletion of the disallowances, stating that the Assessing Officer's actions lacked a basis.
Non-charging of Interest on Advances:
The second issue concerns the addition of Rs. 47,83,343/- due to non-charging of interest on advances made to Chirag Trust and Dopsons Pharma India Ltd. for property purchase at Bombay. The Assessing Officer alleged that these advances were for siphoning off money and computed interest at 15%. However, the CIT(A) found this computation unjustified as the advances were made towards the end of the year. The CIT(A) referred to a previous year's deletion of a similar addition and ruled in favor of the assessee. The Tribunal agreed with the CIT(A), emphasizing the timing of the advances and the lack of fund flow, ultimately upholding the CIT(A)'s decision.
Allowance of Interest Liability Not Debited in Books of Account:
The final issue involves the direction by the CIT(A) to allow the liability of interest, even though it was not debited in the books of account and not claimed through a revised return. The assessee followed the mercantile system of accounting, and the CIT(A) accepted the claim based on this consistent method. The Tribunal highlighted the principle that the Assessing Officer must ascertain the correct assessable income, regardless of how the assessee initially reported it. Citing CBDT circulars, the Tribunal supported the CIT(A)'s decision, emphasizing the importance of guiding the assessee to ensure accurate assessment. Referring to a specific circular, the Tribunal upheld the CIT(A)'s order, emphasizing the department's obligation not to exploit the assessee's ignorance for excessive tax collection.
In conclusion, the Tribunal dismissed both appeals by the revenue, affirming the CIT(A)'s decisions on all the issues discussed in the judgment.
-
2009 (7) TMI 1344
The Karnataka High Court dismissed the appeal as the question of law was already answered in a previous case against the Revenue. The appeal was found to be devoid of merit.
........
|
9911796707
