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Showing 41 to 60 of 910 Records
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2008 (8) TMI 988 - BOMBAY HIGH COURT
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... ... ..... so, we do not find any reason to take a view different from the view that we have already taken in the case of the co-detenu by our aforesaid judgment dated 14th August 2008. 7. Particularly in view of the fact that the notification was issued under section 7(1)(b) of the COFEPOSA Act, as was also issued the case of the aforesaid co-detenu, in our view, even in the present case, it cannot be said that gross or inordinate delay is caused by the respondents in executing the detention order on the present detenu. 8. As no other point was argued on behalf of the petitioner questioning the sustainability of the detention order, we do not find any reason to interfere with the same in exercise of our writ jurisdiction in the present case. In view of the aforesaid findings and the legal aspect of the matter dealt with by us by our judgment dated 14th August 2008 delivered in the Criminal Writ Petition No. 455 of 2008, we accordingly dismiss this writ petition and discharge the rule.
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2008 (8) TMI 987 - BOMBAY HIGH COURT
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... ... ..... ssee for claiming refund was reliable and have relied upon said certificate. 2. We do not see that any question of law arises in this appeal. Hence, rejected.
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2008 (8) TMI 986 - SUPREME COURT
Entitlement for disability pension - Respondent while working in the Indian Army was invalidated out of Army service, in medical category - Disability pension ought to be paid from the date it fell due on 13.11.1983 - delay of 16 years for consequential claim for arrears - relevant date form which the pension to be granted.
HELD THAT:- The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a continuing injury. `Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna S.P. Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [1959 (3) TMI 53 - SUPREME COURT], explained the concept of continuing wrong in the context of Section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963.
Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained.
In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.
Hence, these appeals are allowed. The order of the Division Bench directing payment of disability pension from the date it fell due, is set aside. As a consequence, the order of the learned Single Judge is restored.
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2008 (8) TMI 985 - SC ORDER
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... ... ..... dings of fact which do not call for interference. The appeals are dismissed accordingly. No costs.
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2008 (8) TMI 984 - HIMACHAL PRADESH HIGH COURT
Dishonour of cheque - requirement of presence or absence of the complainant - Whether procedure of private complaint under the India Penal Code or the Negotiable Instruments Act is same according to sec 256 of CrPC? - Powers of Magistrate u/s 256 to dispense with the personal attendance of the complainant.
HELD THAT:- The perusal of the Section 256 reveals that two constraints are imposed on the Court for exercising the power under this Section. Firstly, if the Court thinks in a situation, it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Secondly, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter.
Presence of the complainant, on that day was quite un-necessary, then resorting to the step of axing down the complaint may not be a proper exercise of the power, envisaged in the Section as held in Associated Cement Company Ltd. v. Keshvanand [1997 (12) TMI 629 - SUPREME COURT]. Therefore, the discretion u/s 256 has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the Court.
Though the Procedure of private complaint u/s 138 of the Act largely differs from a private complaint in respect of the offences under the Indian Penal Code. But Section 256 of the CrPC makes no difference whether it is a case under, the IPC or the present Act.
On going through the impugned order it transpires that the learned trial Court did not apply its mind to the provisions of Section 256, it has taken a conscious decision with respect to the presence or absence of the complainant on that day when it dismissed the complaint and acquitted the accused. In absence of it the impugned order is unsustainable and is accordingly set aside. Consequently, both the complaints referred above be now restored and re-registered to its original number by the learned trial Court and proceed with the matter in accordance with law.
The parties are directed to appear before the learned trial Court. Both the appeals are disposed of accordingly.
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2008 (8) TMI 983 - ITAT AHMEDABAD
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... ... ..... spect of Banas-II Dairy Unit. However, the decision of Tribunal for the assessment year 2004-05 was delivered on 07.12.2008. The Learned Commissioner of Income Tax(Appeals) passed the impugned order on 24.01.2008. Obviously the decision of the Tribunal for the assessment year 2004-05 was not available when the Learned Commissioner of Income Tax(Appeals) passed the impugned order. In view of this, we restore the matter to the file of A.O. with the direction that the assessee should furnish the audit report, A.O. will examine the same. The A.O. will also examine when this Unit was set up and consider the allowance of deduction under section 80IB keeping in view the decision dated 07.11.2008 of the Tribunal in assessee's own case for the assessment year 2004-05 after giving opportunity of being heard to the assessee. 23. In the result, the appeal of the Department is dismissed and the appeal of the assessee is allowed in part. The Order pronounced in the Court on 26.02.2010
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2008 (8) TMI 982 - BOMBAY HIGH COURT
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... ... ..... and examine whether a detenu has to be detained or not; but once the Detaining Authority first decides to detain a person, and then manufactures the grounds of detention, that cannot be permitted. Even in the affidavit, it has been admitted that the Grounds of Detention were framed after 30th April, 2007, and on 30th April, 2007, the order with respect to issuance of Detention Order had already been passed. 8. Time and again, we have said that this is an extra-ordinary power given to the officers of the State to detain a person without any charges or without any chance of trial; and this power should be exercised with care. Since, on this ground alone, the Order of Detention can be quashed, we do not go to the other grounds. 9. In the result, the Order of Detention dated 11th February, 2008 is quashed, and the detenu, Amit Bajaj, be released forthwith, if not required in any other case. The Writ Petition is accordingly allowed. The Rule is made absolute in the above terms.,
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2008 (8) TMI 981 - MADRAS HIGH COURT
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... ... ..... or sanctioning the limit, it could not be considered as income from export earnings, as there was no nexus between export earnings and interest income and the interest income was earned from the deposits and not from the export business.' Following the principle laid down in the above-mentioned case on the admitted fact that the deposits were made out of profit income for the purpose of availing further facilities from the bank, we do not find any error in the order of the Tribunal holding that interest income would not qualify for deduction under s. 80-I, it being linked for better business prospects and there is no nexus between export earnings and interest income." 7. The above decision squarely covers the issue now raised in this case. In view of the above decision, the questions of law raised in this case having already been answered against the assessee, the above tax case appeals are dismissed. Consequently, connected miscellaneous petition is also dismissed.
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2008 (8) TMI 979 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... he Tribunal. The Tribunal held that addition based on unexplained cash enterted lin the pass book of the daughter of the assessee, was justified. Reference was made to section 132(4-A) of the Act which permitted presumption to be raised that a document, found in possession of any person in the process of search, belongs to such person. It was held that the assessee failed to explain the source of deposit in the name of his unmarried daughter. 3. We have heard counsel for the parties. 4. Learned counsel for the petitioner submits that presumption under section 132(4-A) of the Act was rebuttable and the assesee led evidence to rebut the said presumption. There is no dispute about the proposition that presumption can be rebutted nor the Tribunal has held to the contrary. The Tribunal has held that the assessee failed to rebut the presumption, which is purely a finding of fact. No substantial question of law arises from the impugned order. 5. Accordingly the appeal is dismissed.
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2008 (8) TMI 978 - SC ORDER
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... ... ..... aran , ASG Mr. H. Raghavendra Rao, Adv. for Mr. B.V. Balaram Das,Adv. For the Respondent Mr. Ghanshya m Joshi,Adv. OR D E R The Special Leave Petition is dismissed on the ground of delay.
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2008 (8) TMI 977 - CALCUTTA HIGH COURT
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... ... ..... the other facet of passing off. There will be an order of injunction restraining the defendant from using the mark "Ayucare" simpliciter without using the distinguishing feature of "Himani" in conjunction therewith. The rest of the plaintiff's claim, notwithstanding the observations made herein, has to await the trial. As in the modified order of September 28, 2007, such injunction will be restricted to the manufacture, marketing and sale of the defendant's "Ayucare" products in India. The remainder of the subsisting interim order stands vacated. GA No. 2951 of 2007 and GA No. 3976 of 2007 are disposed of without any order as to costs. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. (Sanjib Banerjee, J.) Later The plaintiff seeks a stay of operation of the order to the extent that it vacates the subsisting interim order. Such prayer is refused.
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2008 (8) TMI 976 - DELHI HIGH COURT
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... ... ..... qually efficacious relief of protecting the estate of the deceased by applying to the probate court under Part VII, chapter XXIII of the Indian Succession Act, 1925. It has been held in Cotton Corporation of India v. United Industrial Bank 1983 3SCR962 that the relief of permanent injunction is barred by the provisions of Section 41 of the Specific Relief act. 11. In view of the findings aforesaid, the plaint is rejected/dismissed for the reason of not disclosing any cause of action and/or for the reason of the relief of declaration being premature and/or the plaintiff being not entitled to the same on the date of the institution of the suit and further on the ground of the relief of declaration claimed in the plaint being barred by law i.e., Section 16 of the CPC and the relief of permanent injunction claimed in the plaint being barred by the provisions of Section 41 of the Specific Relief Act. However, in the facts of the case, the parties are left to bear their own costs.
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2008 (8) TMI 975 - PATNA HIGH COURT
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... ... ..... at the complainant is bound and compelled to examine all the witnesses named in the complaint though he may not be willing to examine one or all of them on account of reasons that may be. iii) The Magistrate while taking cognizance of offence is not required to weigh the evidence in detail but is required to see whether prima facie offence is made out or not. He need not give the reasons in detail for purpose of taking cognizance but has to record his satisfaction on perusal of records. The impugned order shows that the Magistrate after perusing the complainant, S.A. of the complainant, the evidence of P.Ws. and materials on record took cognizance and summoned the accused to face trial. As such the court does not find any illegality in the impugned order. 33. For the reasons stated above, I do not find any merit in this writ petition and the same is dismissed. It would be open to the petitioners to make such submissions as would be relevant at the stage of framing of charge.
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2008 (8) TMI 974 - BOMBAY HIGH COURT
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... ... ..... at the terms of Clause 90 1(b) do not permit the parties to agree to an extension of time beyond the period of three years even by consent. He based his submission on the last sentence of the clause. The argument is unfounded. 37. The second sentence of the clause correctly construed merely provides that in the event of the arbitrator extending the time by a further 12 months the parties had irrevocably given their consent to his making and publishing the award within the extended period and they would not be entitled to raise any objection or protest thereto under any circumstances whatsoever. There is nothing in the clause which even remotely indicates that the parties cannot by consent agree to waving the stipulation as to time within which the award was to be made and published. 38. In the circumstances the petition is dismissed. However to enable the petitioner to challenge this order the arbitration proceedings shall not continue for a period of eight weeks from today.
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2008 (8) TMI 973 - CESTAT, AHMEDABAD
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... ... ..... Tri-Ahmd.), in case of CCE Jaipur Vs. M/s Raghuvir (India) Ltd. 2000 (118) ELT 311 (SC) and in case of CCE Kolkata-II Vs. M/s Giriraj Industries 2008 (223) ELT 640 (Tri-Kolkata), learned advocate submits that the demand is barred by limitation. 2.After going through the impugned order, I find that the above issue was neither raised before Commissioner (Appeals) nor is there any finding by appellate authority on the issue. Accordingly, I set aside the impugned order and remand the matter for decision on the above point in the light of law declared by Tribunal in the above referred decisions. 3.Appeal is, thus, allowed by way of remand. Stay petition also gets disposed off. (Dictated & Pronounced in Court)
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2008 (8) TMI 972 - BOMBAY HIGH COURT
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... ... ..... 39;B' is the family business separation, which is signed by two persons, one from the Plaintiffs and other from the Defendants. It is typed on a leisure paper and Exhibit 'C' is a description of the properties, which went to the share of Bazzardev Sadh Group pursuant to the family arrangement deed. 3. In my view, it cannot be said that these three documents represent any agreement between the parties. Shri Mahendrabhai Ghelani was appointed as a Mediator. The Mediator has no right to pass an award for determining the rights of the parties as per the provisions of the Mediation Arbitration and and Conciliation Act or the Rules framed thereunder or the rules framed by this court. Under these circumstances, at this stage, no case is made out for grant any ad-interim relief. The Defendants should file their reply and the Plaintiffs should file their rejoinder, if any, within two weeks. Notice of Motion will come up for hearing in due course. Defendants waive service.
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2008 (8) TMI 971 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... nition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vacate, interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works the principle was thus stated (ER p.420) “(E)ven God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God), where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?” Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.” (emphasis supplied) These observations apply with full force to the facts of this case. For the reasons recorded above, the impugned order cannot be sustained. Accordingly, the appeal is allowed and the impugned order set aside with no order as to costs.
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2008 (8) TMI 970 - SUPREME COURT
Validity of Arbitral Award - work relating to development of land - claim of extra rate of ₹ 30/- per cubic meter over and above the rate agreed to in the Agreement for extra cartage involved in bringing the stone aggregate - Binding effects of Agreement on parties in the absence of specific clause - Whether the Arbitrator as well as the Division Bench of the High Court were justified in granting the Award or the appellant-DDA has made out a case for setting aside the Award in respect of those claims with reference to the terms of the Agreement duly executed by both parties?
Stand of the claimant that apart from the Agreement dated 18.4.1990, both parties were agreed to abide by the conditions mentioned in the letter dated 10.4.1990 of the claimant, M/s R.S. Sharma & Co. to the Chief Engineer (WZ), DDA, Vikas Minar, New Delhi.
HELD THAT:- As rightly pointed out by the ld ASG appearing for DDA, there is no specific clause in the terms of agreement for extra cartage for bringing stones from elsewhere. In this regard, the appellant heavily relied on clause 3.16 of the Agreement.
The perusal of the Award of the Arbitrator as well as the judgment of the Division Bench clearly shows that they did not advert to the above clause 3.16. It is relevant to point out that the extra cartage has been awarded by the Arbitrator without adverting to clause 3.16 of the Agreement, hence, the learned single Judge was wholly justified in partially setting aside the Award in respect of the claims with respect to the extra cartage. We also perused the pleadings and evidence placed on record pertaining to Claim Nos. 1-3 and additional Claim Nos. 1-3. As rightly observed by the learned single Judge, there was no material on record to substantiate the case of the claimant, viz., DDA had insisted upon the claimant for using the stone aggregates brought from Nooh in Haryana.
In those circumstances and of the fact that the terms and conditions of the Agreement are binding on both the parties, in the absence of specific clause with regard to payment of extra cartage and in view of clause 3.16, the respondent- claimant cannot claim extra cartage @ ₹ 30/- per cubic meter on the ground of extra lead involved in bringing the stone aggregates from Nooh in Haryana.
The Division Bench like the Arbitrator proceeded on the sole basis that DDA had compelled the claimant-Company from bringing the stone aggregates from Nooh in Haryana and committed an error in affirming the erroneous conclusion arrived at by the Arbitrator insofar as the additional claims are concerned.
The award is completely silent on the relevant clause viz. clause 3.16 of the Agreement which makes it clear that the contractor is wholly responsible for all the extra leads. In fact, the Arbitrator has given no reason whatsoever so far as the rate claimed for the extra lead by the claimant and has verbatim accepted the claim without giving any justification for the same.
As rightly pointed out by learned counsel for the appellant, there is nothing on record to show that the Department had insisted upon bringing the stone aggregate only from Nooh. Hence, the contractor will not be entitled to the increased rates for extra lead. Without a specific request or additional clause, the Arbitrator in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 proceeded on the wrong assumption that the Department had insisted upon the use of stone aggregate to be brought from Nooh, hence, the learned single Judge is perfectly right in holding that there is an error apparent on the face of the Award and the Award is liable to be set aside. As stated earlier, the Arbitrator has ignored clause 3.16 of the contract and made a departure from the contract while granting relief in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 and the same, in our view, cannot be sustained.
Therefore, we allow the appeal of DDA and set aside the judgment and order passed by the Division Bench and restore the order of the ld single Judge insofar as Claim Nos. 1-3 and additional Claim Nos. 1-3 are concerned.
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2008 (8) TMI 969 - DELHI HIGH COURT
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... ... ..... uired, it depends upon the facts of each case. Para 19…..Where under an agreement the Arbitrator is required to give reasons for his award, he is not required to give a detailed judgment or detailed reasons. By reasons it means that the award should be speaking one. In the reasoned award what is expected from the Arbitrator is that he should indicate his mind whereby it can be ascertained as to how he has arrived at a particular conclusion. In case of reasoned award, the Arbitrator is required to indicate the trend of his thought process but not his mental meanderings, the purpose of commercial arbitration, being speedy, certainly and a cheaper remedy…………..’ 12. As a result, the objections filed by the petitioner are dismissed. The impugned award dated 28.7.1999, is confirmed and made rule of the Court. Decree sheet be prepared accordingly. There will be no order as to costs. File be consigned to the record room. Objections dismissed.
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2008 (8) TMI 968 - DELHI HIGH COURT
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... ... ..... He spared no effort in rendering able assistance and we found the same to be of a high caliber and quality. Mr. Nigam truly performed the task of an Amicus Curiae in ably assisting the Court in formulating the legal propositions and giving an objective and impartial assessment. We recommend to Hon'ble the Chief Justice to suo motu consider designating Mr. Arvind Nigam as a Senior Advocate of this Court. 244. A free copy of this judgment and order be handed over today to the learned Amicus, learned Counsel for NDTV, Mr. R.K. Anand, Mr. I.U. Khan, Mr. Sri Bhagwan Sharma under the signatures of the Court master. 245. In the event that Mr. Anand or Mr. Khan may wish to take up the matter further, we direct NDTV to preserve the original chips until 31st December, 2008. If there are no further orders from any Court in respect of the original chips, NDTV may thereafter reformat them or otherwise utilize them. 246. The suo motu criminal contempt petition is disposed of as above.
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