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• 2009 (9) TMI 1056
  

  Murder - Offence Punishable u/s 307 and 302 r/w Section 34 IPC - Conflicting judgments of the trial court and the High Court - Whether view taken by the trial court's is possible or plausible? - The appellant and other accused and the deceased belonged to the Burma colony. All of them went to the temple and came out at 2.00 p.m. after worshipping and taking food from the temple. The crowd before the temple dispersed and people started running. Accused No. 3 threw an aruval on P.W.1 After receiving the injury, P.W.1 managed to run. Then accused No. 2 gave cut injury to Jambu on his head and back. Dhanapal stabbed Jambu on his chest. Accused No. 4 stabbed Jambu on his back. Thereafter, all the accused ran away with their weapons. The deceased was attacked near the house of one Subramania Thevar by the side of a light post. P.W.3 at about 2.00 p.m. on 8.5.1988 saw the deceased lying dead at the scene of crime.

  The High Court in the impugned judgment set aside the acquittal recorded by the Sessions Judge and allowed the appeal filed by the State. The High Court held accused Nos. 1, 2 and 4 guilty for an offence punishable u/s 302 r/w Section 34 IPC and imposed sentence of life imprisonment and held accused No. 3 guilty for the offence punishable u/s 307 IPC and imposed sentence of five years.

  It may be pertinent to mention that accused respondent Nos. 2 to 4 died during the pendency of appeal before the High Court. The only surviving appellant herein (who was accused No. 1 before the High Court) has filed the present appeal against the impugned judgment and order of the High Court.

  HELD THAT:- There are conflicting judgments of the trial court and the High Court, therefore, we have carefully gone through the entire evidence de novo. The High Court, in our considered view, could not have shifted the burden of proof on the accused. According to the fundamental principles of the Evidence Act, it is for the prosecution to have proved its own case.

  According to P.W.2, the occurrence took place after deceased and the witnesses came to the temple and after worshipping and taking food they came out at 2.00 p.m. The stomach of the deceased must, therefore, contain food particles. Whereas, according to the doctor, who conducted the autopsy over the dead body of the deceased, found that the stomach was empty. This casts serious doubt on the veracity of the testimony of P.W.2. The trial court also rejected the testimony of another eye witness P.W.3.

  P.W.10, Inspector of Police, took up the investigation and went to the scene of occurrence at 6.30 p.m. and on account of lack of sufficient light, he did not hold the inquest, but went and searched for the accused after posting two constables to guard the body of the deceased.

  The trial court was of the opinion that the medical evidence also does not support the prosecution case. The trial court was of the view that on such quality of evidence it would not be safe to record the conviction and acquitted the accused.

  The High Court was not justified in weaving out a different and new prosecution version. The Court is under the bounden duty and obligation to deal with the evidence as it is. No improvement or rewriting of evidence is permissible. In the instant case, P.W.1 had turned hostile and P.W.3 also did not support the prosecution case. The testimony of P.W.2 is also not wholly reliable.

  On proper evaluation of the trial court judgment, we hold that the view taken by the trial court was certainly a possible or a plausible view. It is a well settled legal position that when the view which has been taken by the trial court is a possible view, then the acquittal cannot be set aside by merely substituting its reasons by the High Court. In our considered view, the impugned judgment of the High Court is contrary to the settled legal position and deserves to be set aside.

  This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.

  In Tota Singh and Anr. v. State of Punjab [1987 (4) TMI 495 - SUPREME COURT], the Court reiterated the same principle in the following words: ''Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.''

  In Bhagwan Singh and Ors. v. State of M.P.[2002 (3) TMI 918 - SUPREME COURT], the Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

  In Ghurey Lal v. State of Uttar Pradesh [2008 (7) TMI 951 - SUPREME COURT], a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. The exercise of surveying relevant judgments has again been taken with the hope that the Appellate Courts would keep in view the settled legal position while dealing with the trial courts' judgments of acquittals.

  The following principles emerge from the cases above:

  1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

  2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

  3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

  4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

  5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

  On careful marshalling of the entire evidence and the documents on record, we arrive at the conclusion that the view taken by the trial court is certainly a possible or plausible view. The settled legal position as explained above is that if the trial court's view is possible or plausible, the High Court should not substitute the same by its own possible view. In the facts and circumstances of this case, the High Court in the impugned judgment was not justified in interfering with the well reasoned judgment and order of the trial court.

  Consequently, this appeal filed by the appellant is allowed and disposed of and the impugned judgment of the High Court is set aside.

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• 2009 (9) TMI 1055
  
  Issues Involved:
  1. Legality of the assessment cancellation u/s 153A of the I.T. Act, 1961.
  2. Deletion of disallowance of depreciation by the CIT(A).
  
  Summary:
  
  Issue 1: Legality of the assessment cancellation u/s 153A of the I.T. Act, 1961

  The Revenue challenged the CIT(A)'s decision to cancel the assessment on the grounds that all additions were subject to original assessment proceedings and appellate proceedings before the CIT(A) and ITAT, and thus could not be re-agitated by the Assessing Officer in an action u/s 153A of the I.T. Act, 1961. The Tribunal upheld the CIT(A)'s decision, stating that the assessment u/s 153A cannot disturb issues that have attained finality in original assessment proceedings unless fresh material is found during the search or subsequent investigation. The Tribunal referenced its previous decision in the case of Meghmani Organics Ltd., which held that only pending assessments abate and not completed assessments. Therefore, the Tribunal confirmed the CIT(A)'s order to cancel the assessment u/s 153A.

  Issue 2: Deletion of disallowance of depreciation by the CIT(A)

  The Revenue also contested the deletion of the disallowance of depreciation amounting to Rs. 19,61,690/- by the CIT(A). The Tribunal noted that the issue of depreciation had already been decided in favor of the assessee in the original assessment proceedings, where it was held that for working out the Written Down Value (WDV), only the actual depreciation allowed should be reduced. The Tribunal reiterated that the WDV should be calculated by reducing the actual depreciation allowed and not any notional depreciation. Since no fresh material was found during the search to justify a different view, the Tribunal upheld the CIT(A)'s decision to delete the disallowance of depreciation.

  Conclusion:

  The Tribunal dismissed all seven appeals filed by the Revenue, confirming the CIT(A)'s orders for all assessment years from 2001-02 to 2007-08. The Tribunal emphasized that issues which have attained finality in original assessment proceedings cannot be re-agitated in proceedings u/s 153A unless fresh material is found during the search or subsequent investigation.

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• 2009 (9) TMI 1053
  

  Refund claim - Activity of sale and purchase of units of mutual fund schemes - it was held by CESTAT that as the ‘Business Auxiliary Service’ provided by a commission agent by way of sale and purchase of “goods’ stands exempted under Notification No. 13/2003, the conclusion is irresistible that the respondents were not liable to pay any service tax for service rendered as commission agent in connection with sale and purchase of units of mutual fund schemes during the relevant period.

  HELD THAT:- Appeal admitted.

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• 2009 (9) TMI 1052
  
  Issues Involved: Appeal against judgment declaring respondent not liable for ESIC contribution.
  
  Judgment Summary:
  
  Issue 1: Impleading of workers in legal proceedings
  
  The appellant issued a notice u/s 45A of the Employees State Insurance Act, 1948 for employer's contribution. The respondent challenged this notice, but the workers were not made parties in the legal proceedings. The Employees State Insurance Court ruled in favor of the appellant, but the High Court overturned this decision, stating the sub-stations are not factories. The Supreme Court emphasized that labor statutes are for the benefit of workers, and it is essential to involve workers or their representatives in legal proceedings. The Court highlighted the importance of natural justice and the need to hear all concerned parties before making any adverse decisions. The Court ruled that failure to involve workers in the legal process violates natural justice principles. Therefore, the appeal was allowed, and the matter was remanded to the Employees State Insurance Court for a fresh decision after impleading the workers or their union in a representative capacity.
  
  Issue 2: Remand for fresh decision
  
  In a separate appeal, the Supreme Court, for the same reasons as in the first appeal, set aside the judgments of the High Court and the Employees Insurance Court. The matter was remanded to the Employees State Insurance Court for a fresh decision after involving the workers or their union in a representative capacity. The Court urged the Employees State Insurance Court to expedite the decision due to the case's age.
  
  In conclusion, both appeals were allowed, and no costs were imposed.
  
  This summary highlights the importance of involving workers or their representatives in legal proceedings under labor statutes to ensure natural justice and protect the rights of workers.

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• 2009 (9) TMI 1051
  
  Issues Involved:
  1. Corrupt practice under Section 123(3) of the Representation of People Act, 1951.
  2. Corrupt practice under Section 123(5) of the Representation of People Act, 1951.
  3. Validity of the election of the appellant.
  4. Declaration of the election petitioner as duly elected.
  5. Entitlement of the election petitioner to the cost of the election petition.
  
  Issue-wise Detailed Analysis:
  
  1. Corrupt Practice under Section 123(3):
  The High Court found that the appellant committed corrupt practice under Section 123(3) by printing and distributing a notice (Ext.P1) and a photo calendar (Ext.P2) appealing to voters on religious grounds. The notice, purportedly authored by John K., contained an appeal to the Christian community, particularly Catholics, to vote for the appellant, highlighting his services to the community and his association with religious figures. Witnesses testified that these materials were distributed among voters by the appellant's party workers. The High Court inferred the appellant's consent for this distribution from the involvement of his election agent, James, in the printing and distribution process. The Supreme Court upheld this finding, agreeing that the evidence proved the charge beyond reasonable doubt.
  
  2. Corrupt Practice under Section 123(5):
  The High Court also found that the appellant violated Section 123(5) by hiring vehicles for the free conveyance of electors. Although there was no direct evidence of the appellant's consent, the High Court inferred it from witness testimonies that party workers offered vehicles to voters. The Supreme Court, however, did not find it necessary to examine this issue further, given the findings on the first issue.
  
  3. Validity of the Election of the Appellant:
  The High Court declared the appellant's election void under Section 100(1)(b) of the Act due to the proven corrupt practices. The Supreme Court upheld this decision, agreeing with the High Court's assessment of the evidence and the application of the law.
  
  4. Declaration of the Election Petitioner as Duly Elected:
  The High Court declared the election petitioner as duly elected under Section 101(b) of the Act, reasoning that but for the corrupt practices, the election petitioner would have won. The Supreme Court did not find any compelling reason to overturn this finding.
  
  5. Entitlement to the Cost of the Election Petition:
  The High Court did not award the costs of the election petition to the election petitioner. The Supreme Court upheld this decision as well, making no order as to costs in the appeal.
  
  Additional Appeal (Civil Appeal No. 5777 of 2006):
  This appeal was filed by the second respondent in the election petition, who argued that he should have been declared elected instead of the election petitioner. The Supreme Court dismissed this appeal as infructuous, noting that a fresh election had already taken place.
  
  Conclusion:
  The Supreme Court dismissed the appeal, affirming the High Court's judgment that the appellant's election was void due to corrupt practices under Section 123(3) of the Representation of People Act, 1951. The election petitioner was rightfully declared elected. The appeal by the second respondent was dismissed as infructuous due to the occurrence of a fresh election.

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• 2009 (9) TMI 1050
  
  Issues Involved:
  1. Classification of shares as stock-in-trade or investment.
  2. Disallowance of telephone expenses for personal use.
  
  Summary:
  
  Issue 1: Classification of Shares as Stock-in-Trade or Investment
  The primary issue was whether the shares held by the assessee, initially as stock-in-trade and later converted into investments, should be treated as stock-in-trade or capital assets. The assessee argued that the shares received from M/s. DSJ Financial Services Ltd. on 01-04-1996 were converted into capital assets and sold for the first time in the year under consideration, claiming the gains as long-term capital gains. The Assessing Officer (AO) and the CIT(Appeals) had previously treated these shares as stock-in-trade, citing the assessee's past trading activities and the lack of evidence for conversion into capital assets. However, the ITAT referred to CBDT Circular No. 4/2007, which distinguishes between shares held as stock-in-trade and investments, and concluded that the assessee's shares should be treated as investments. The ITAT found no evidence of frequent trading in the year under consideration and accepted the assessee's version, directing the AO to assess the profit on sale of shares under the head capital gains. Consequently, ground no. 1 was allowed.
  
  Issue 2: Disallowance of Telephone Expenses for Personal Use
  The second issue was the disallowance of Rs. 15,000/- for personal use of telephone expenses. The assessee contended that the estimate made by the ACIT was on the higher side. However, this ground was not pressed before the ITAT, and no additional ground was raised. Therefore, this ground was dismissed.
  
  Conclusion:
  The appeal was partly allowed, with the ITAT vacating the findings of the CIT(Appeals) on the classification of shares and directing the AO to assess the profit on sale of shares as capital gains. The disallowance of telephone expenses was upheld as the ground was not pressed. The order was pronounced in Open Court on 11th September 2009.

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• 2009 (9) TMI 1049
  
  Issues involved:
  The appeal challenges an interim order staying the termination of service of respondents by the High Court of Judicature at Allahabad at Lucknow Bench at Lucknow. The State of UP filed a Special Leave Petition against the interim order.
  
  Details of the Judgment:
  
  Interim Order Challenge:
  The appeal challenges an interim order dated 23rd of October, 2008, passed by a Division Bench of the High Court of Allahabad at Lucknow Bench at Lucknow. The interim order stayed the termination of service of the respondents pending a writ petition. The State of UP filed a Special Leave Petition against this interim order.
  
  Court's Observation:
  The Supreme Court found that the High Court had erred in staying the order of termination during the pendency of the writ petition. The Court noted that granting such relief at the interim stage would automatically allow the writ petition without allowing both parties to present their cases fully. The appellants had not filed a counter affidavit to the writ petition of the respondents.
  
  Decision and Directions:
  Considering that final relief could not be granted at the interim stage, the Supreme Court set aside the impugned order and vacated the interim order passed by the High Court. The Court directed the learned Single Judge of the High Court to decide the writ petition within three months from the date of supply of the order copy. The Court clarified that it did not delve into the merits of the appeal, leaving it to be decided by the High Court during the disposal of the writ petition.
  
  Conclusion:
  The Supreme Court allowed the appeal to the extent indicated above and made it clear that there would be no order as to costs. The Court emphasized that the High Court would examine the merits of the appeal during the disposal of the writ petition.

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• 2009 (9) TMI 1047
  
  Issues involved:
  The issues involved in the case are ownership and possession of a disputed house, validity of sale deeds, benami transactions, rights of bona fide purchasers, collusion between parties, and maintainability of the suit.
  
  Ownership and Possession:
  The plaintiff claimed ownership and possession of a house purchased from previous owners, alleging that defendants had illegally transferred shares. Defendants admitted the purchase but disputed plaintiff's ownership and possession, claiming joint ownership and legal transfers. The trial court framed issues regarding ownership, possession, and validity of sale deeds.
  
  Validity of Sale Deeds:
  The sale deeds dated 26.2.1985 and 13.4.1987 were central to the dispute. Plaintiff contended that the property was benami and she was the real owner, as she paid the consideration. However, evidence showed that defendants were in possession and had dealings with the property. The court analyzed the sale deeds, ownership claims, and the plaintiff's lack of involvement with the property.
  
  Bona Fide Purchaser and Collusion:
  Defendant No.3 claimed to be a bona fide purchaser without notice, while plaintiff alleged collusion between defendants. The court examined the transactions, notices served, and the conduct of the parties to determine the validity of the purchase and the presence of collusion.
  
  Maintainability of the Suit:
  The court addressed the maintainability of the suit in its current form, considering the ownership, possession, and transactional details presented by both parties. The substantial question of law focused on whether the Additional District Judge misread the evidence regarding the property's ownership status.
  
  Judgment Summary:
  The High Court allowed the appeal, setting aside the judgment of the Additional District Judge and upholding the trial court's decision. It found that the plaintiff had no real concern with the disputed property, as evidenced by her lack of involvement and contradictory statements. The court concluded that the plaintiff's claim of benami ownership was unfounded, considering her actions and the evidence presented. Therefore, the suit was deemed not maintainable, and the appeal was allowed in favor of the defendants.

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• 2009 (9) TMI 1046
  
  Issues Involved:
  1. Jurisdiction of Debts Recovery Tribunal (DRT) to address post Section 13(4) situations.
  2. Validity of the sale conducted by the Respondent Bank.
  3. Amendment of the original securitisation application by the Petitioner.
  
  Summary:
  
  1. Jurisdiction of Debts Recovery Tribunal (DRT) to address post Section 13(4) situations:
  The High Court addressed whether the DRT has jurisdiction to consider and adjudicate post Section 13(4) events. The Tribunal and Appellate Tribunal had previously ruled that it was not open to the borrower to question the sale of the property post Section 13(4). However, the High Court referred to the Supreme Court's decision in the case of Authorized Officer, Indian Overseas Bank & Anr. vs. M/s. Ashok Saw Mill (2009(9) SCALE 649), which affirmed that the DRT has the authority to scrutinize and set aside actions taken by secured creditors under Section 13(4) and even restore possession to the borrower.
  
  2. Validity of the sale conducted by the Respondent Bank:
  The Petitioner challenged the sale of the mortgaged property conducted by the Respondent Bank on 12th October 2007, confirmed on 15th October 2007, arguing that it was conducted without notice and due procedure. The Petitioner sought to amend the original securitisation application to include a prayer to declare the sale by private treaty on 15th October 2007 as null and void. The Tribunal initially rejected this amendment, citing precedents like Mardia Chemicals and Transcore, which suggested that such relief could not be granted. However, the High Court found that the DRT has the jurisdiction to address such issues, as clarified by the Supreme Court.
  
  3. Amendment of the original securitisation application by the Petitioner:
  The Petitioner initially filed a securitisation application challenging the validity of the notice issued by the Bank and the subsequent sale of the property. An amendment application was filed on 5th November 2007 to introduce new averments and reliefs. A second amendment application was filed on 25th July 2008 to add further paragraphs and grounds. The Tribunal rejected this second amendment, and the Appellate Tribunal affirmed this decision, stating that the relief sought could not be granted and that the successive amendment was intended to delay the case. The High Court, however, allowed the second amendment, stating that the omission to ask for the relief was due to inadvertence and that the DRT has the power to grant such reliefs, including restoring status-quo ante.
  
  Conclusion:
  The High Court quashed the orders of the Tribunal and Appellate Tribunal, allowing the Petitioner's application for amendment. The Court ruled that the DRT has jurisdiction to address post Section 13(4) situations and that the Petitioner should be allowed to formally pray for the relief of declaring the sale by private treaty as null and void. The Petition was allowed, and the rule was made absolute with no order as to costs.

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• 2009 (9) TMI 1045
  
  Issues Involved:
  1. Sanction of the Scheme of Amalgamation.
  2. Dispensation of meetings of shareholders and creditors.
  3. Compliance with publication and notice requirements.
  4. Objections from the Central Government and Official Liquidator.
  5. Consideration of the appointed date in the Scheme of Amalgamation.
  6. Judicial scrutiny and modification of the Scheme.
  
  Summary:
  
  1. Sanction of the Scheme of Amalgamation:
  The petitions sought sanction for the Scheme of Amalgamation of six transferor companies with one transferee company. The Scheme was produced at Annexure-C in the petitions.
  
  2. Dispensation of Meetings of Shareholders and Creditors:
  In Company Petition Nos. 110/2009 and 111/2009, meetings of equity shareholders and preference shareholders were dispensed with as all had given consent. In Company Petition Nos. 112, 113, 114, and 115 of 2009, meetings of equity shareholders and unsecured creditors were dispensed with. In Company Petition No. 116 of 2009, meetings of equity shareholders and unsecured creditors were also dispensed with.
  
  3. Compliance with Publication and Notice Requirements:
  The petitions were admitted on 5-5-2009, and it was ordered to advertise in two daily newspapers. Notice was issued to the Central Government and the Official Liquidator. Compliance with publication was confirmed through affidavits, and no objections were received from the public.
  
  4. Objections from the Central Government and Official Liquidator:
  The Central Government, through the Deputy Registrar of Companies, requested the submission of the latest financial statements, which were already provided. The Official Liquidator's report stated that the affairs of the transferor companies were not conducted prejudicially to the interest of members or public interest.
  
  5. Consideration of the Appointed Date in the Scheme of Amalgamation:
  The appointed date in the Scheme was 1-4-2008. The Court considered the relevance of the appointed date concerning fiscal laws and accounting years. It was noted that the statutory process for convening meetings was initiated after the end of the accounting year 2008-09, in April 2009. The Court emphasized the importance of initiating statutory processes within the relevant accounting year to avoid complications.
  
  6. Judicial Scrutiny and Modification of the Scheme:
  The Court referred to the powers u/s 392(1) and 394(1) of the Companies Act to supervise and modify the Scheme. Citing the case of Miheer H. Mafatlal v. Mafatlal Industries Ltd., the Court highlighted its duty to ensure the Scheme is fair, just, reasonable, and not contrary to law or public policy. The Court decided to modify the appointed date to 1-4-2009, considering the delay in initiating the statutory process.
  
  Conclusion:
  The Scheme of Amalgamation was sanctioned with the modification that the appointed date shall be 1-4-2009 instead of 1-4-2008. The petitions were allowed to this extent, and costs were directed to be paid to the Central Government Standing Counsel and the Official Liquidator.

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• 2009 (9) TMI 1044
  
  Issues Involved
  1. Whether the suit pertaining to prayers 1 and 2 is barred under the Benami Transactions (Prohibition) Act, 1988.
  2. Whether the suit is barred under Order II Rule 2 in view of the Plaintiff having filed Suit No. 204/2000.
  3. Whether the plaint has been affixed with deficient court fee and whether the plaintiff is obliged to pay ad valorem court fee.
  4. Whether the suit pertaining to prayer 3 is barred by limitation.
  5. To what relief is the Plaintiff entitled.
  6. If Plaintiff is entitled to the reliefs prayed for what consequential directions would be required to be issued.
  7. Relief.
  
  Detailed Analysis
  
  Issue 1: Bar under the Benami Transactions (Prohibition) Act, 1988
  The court noted that Section 4(3) of the Benami Act provides exceptions to Section 4(1), which prohibits a suit, claim, or action to enforce any right in respect of any property held benami. The exceptions include properties held by a coparcener in a Hindu undivided family for the benefit of the coparceners or properties held by a person in a fiduciary capacity. The Plaintiff has pleaded that the payments for the suit property were made from joint family funds and that the property was held by the Defendant for his benefit. To prove these claims, evidence would need to be led at trial. Therefore, Issue No.1 cannot be decided without evidence being led.
  
  Issue 2: Bar under Order II Rule 2 CPC
  The court concluded that the earlier Suit No. 204 of 2000, which was a suit for partition, did not run its full course and was withdrawn with permission to file a fresh suit on the same cause of action. The court held that Order II Rule 2 CPC requires the earlier suit to include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action. Since the earlier suit was withdrawn without running its full course, the Plaintiff is not precluded from seeking further relief in the present suit. Therefore, the suit is not barred under Order II Rule 2 CPC.
  
  Issue 3: Deficient Court Fee
  The court observed that the valuation of the suit for the purposes of court fees would depend on the evidence led. If the Plaintiff can show that he is in possession of a portion of the suit property, then the court fee would have to be calculated accordingly. Therefore, Issue No.3 cannot be decided without evidence being led.
  
  Issue 4: Bar by Limitation
  The court found that the claim for recovery of money in the sum of Rs. 1,20,000 was barred by limitation. The last payment was made in 1995, and the suit was filed in 2001, which is beyond the limitation period. The court rejected the Plaintiff's submission that the prayer for recovery of money should be construed as a prayer for rendition of accounts. Accordingly, this issue was decided in favor of the Defendant.
  
  Relief and Consequential Directions
  The court held that the prayer for recovery of money against the Defendant is barred by limitation and is therefore rejected. Issues No.1 and 3, although preliminary issues, cannot be decided at this stage without evidence being led. These issues will be decided along with other issues at the final stage.
  
  Conclusion
  1. Issue No.2 is decided against the Defendant and in favor of the Plaintiff, holding that the suit is not barred under Order II Rule 2 CPC.
  2. The prayer for recovery of money against the Defendant is barred by limitation and is therefore rejected.
  3. Issues No.1 and 3 cannot be decided at this stage without evidence being led and will be decided at the final stage.
  
  The case is listed before the learned Joint Registrar for the Plaintiff to file the affidavit by way of examination of chief of its witnesses, and a schedule for the completion of the recording of the evidence will be fixed.

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• 2009 (9) TMI 1043
  
  Issues Involved:
  1. Legality of Customs Circular No. 26/07, dated 20.7.2007.
  2. Liability to pay interest u/s 61(2) of the Customs Act when duty is exempted.
  3. Equivalence of DEPB credit adjustment to payment of duty in cash.
  4. Implications of delayed clearance from the warehouse on interest liability.
  
  Summary of Judgment:
  
  Issue 1: Legality of Customs Circular No. 26/07, dated 20.7.2007
  The court did not specifically address the legality of the Customs Circular No. 26/07, dated 20.7.2007, as the primary focus was on the interpretation of the Customs Act and relevant notifications.
  
  Issue 2: Liability to Pay Interest u/s 61(2) of the Customs Act When Duty is Exempted
  The appellant argued that since they were clearing goods using DEPB scrips under a notification issued u/s 25 of the Customs Act, which exempts them from paying duty, they should not be liable to pay interest on a non-existing duty. The court referred to the Supreme Court's judgment in Pratiba Processors v. Union of India, which held that interest is linked to the duty payable. If the principal amount (duty) is nil due to exemption, the interest is also nil. However, the court distinguished this case from the present one, noting that the DEPB Scheme involves duty payment through credit and not an unconditional exemption.
  
  Issue 3: Equivalence of DEPB Credit Adjustment to Payment of Duty in Cash
  The court examined whether debits under DEPB are equivalent to payment of duty in cash. It concluded that goods cleared under the DEPB Scheme are not exempted but are considered duty-paid through credit. The court referred to the Foreign Trade Policy 2004-07 and Circular No. 59/2004-Cus., which clarified that DEPB debits are treated as duty payments, allowing for CENVAT credit or duty drawback.
  
  Issue 4: Implications of Delayed Clearance from the Warehouse on Interest Liability
  The court held that interest is chargeable on duty paid by way of debit in DEPB on goods cleared from the warehouse beyond the interest-free period of 90 days as per Section 61(2) of the Customs Act. The court emphasized that the DEPB Scheme does not provide for unconditional exemption from duty, unlike the DEEC Scheme, which allows duty-free clearance. Therefore, the delayed clearance under the DEPB Scheme incurs interest liability.
  
  Conclusion
  The court dismissed the appeals, ruling that the goods cleared under the DEPB Scheme are duty-paid and not exempted, thereby attracting interest u/s 61(2) of the Customs Act for delayed clearance from the warehouse.

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• 2009 (9) TMI 1042
  
  Issues involved: Appeal against disallowance of deduction u/s 10B on gains from foreign exchange fluctuation.
  
  Summary:
  1. The revenue appealed against the order disallowing deduction u/s 10B on gains from foreign exchange fluctuation.
  2. The assessee claimed deduction on exchange rate fluctuation, which was disallowed by the Assessing Officer.
  3. The CIT(A) allowed the deduction based on a previous tribunal decision regarding eligibility for deduction under section 80HHC.
  4. The Assessee's representative cited a decision in a different case supporting the allowance of the deduction.
  5. Both representatives agreed on the issue.
  6. The Tribunal upheld the CIT(A)'s decision, stating that gains from exchange fluctuation are part of the receipt of sale proceeds and are eligible for deduction under section 10B.
  7. The Tribunal emphasized that the gain was due to a change in the rate of exchange upon receiving the sale proceeds, not from depositing and withdrawing funds from a bank account.
  8. The appeal of the Revenue was dismissed based on the above reasoning.

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• 2009 (9) TMI 1041
  
  Issues involved: Challenge to acquisition under Regulation 23(3) of the takeover code, Inaction of the Board regarding Regulation 12 violation, Maintainability of appeal u/s 15T of SEBI Act.
  
  Challenge to acquisition under Regulation 23(3) of the takeover code:
  The appellant challenged the acquisition by the second respondent, alleging a violation of Regulation 23(3) of the takeover code. The Tribunal dismissed the appeal, stating that the appellant had suppressed material facts from the Supreme Court by not disclosing that his earlier appeal on the same ground had already been dismissed. The appellant failed to raise the plea of violation of Regulation 12 in the earlier appeal, which led to the dismissal of the present appeal on the grounds of constructive res judicata and Order 2 Rule 2 of the Code of Civil Procedure. The High Court's observations limited the appellant's scope of challenge, further weakening his case.
  
  Inaction of the Board regarding Regulation 12 violation:
  The appellant sought to challenge the inaction of the Securities and Exchange Board of India (SEBI) in adjudicating on the alleged violation of Regulation 12 of the Takeover Code. However, the Tribunal noted that an appeal lies u/s 15T of the SEBI Act only against an order of the Board, not against its inaction. The appellant's grievance was based on the Board's failure to act on his complaints, rather than any adverse order passed by the Board. The Tribunal emphasized that challenging inaction is not permissible under the current legal framework, citing a previous case to support this position.
  
  Maintainability of appeal u/s 15T of SEBI Act:
  The Tribunal clarified that for an appeal to be maintainable u/s 15T of the SEBI Act, there must be an order passed by the Board that is being challenged. In this case, the appellant was contesting the Board's inaction rather than any specific order issued by the Board. The Tribunal rejected the argument that certain paragraphs of the Board's affidavit in the High Court should be treated as an order for the purpose of the appeal. The lack of a formal order or direction from the Board rendered the appeal non-maintainable under the provisions of the SEBI Act.
  
  Conclusion:
  The appeal challenging the acquisition under Regulation 23(3) was dismissed due to the appellant's failure to disclose relevant information and the limited scope of challenge set by the High Court. Additionally, the appeal based on the Board's inaction regarding Regulation 12 violation was deemed non-maintainable under the SEBI Act. The appellant was directed to bear the costs of the respondents and the application to raise additional grounds in the appeal was also dismissed.

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• 2009 (9) TMI 1040
  
  Issues Involved:
  1. Locus standi of a foreign national to file the petition.
  2. Enforcement of rights under Articles 14, 19, and 21 of the Constitution of India for a foreign national.
  3. Validity and implications of the cancellation of the PIO Card.
  
  Summary:
  
  1. Locus Standi of a Foreign National:
  The respondent No. 1 argued that the petitioner, being a foreign national, has no locus standi to file the petition and there is no violation of any fundamental right available to him as a foreign national. The affidavit by Mr. Ashok Kumar, Under Secretary to the Government of India, stated that the PIO Card was issued under executive powers and there is no right conferred upon the petitioner to hold the PIO Card indefinitely.
  
  2. Enforcement of Rights under Articles 14, 19, and 21:
  The petitioner argued that despite being a foreign national, he can resort to Articles 14 and 21 of the Constitution of India, as his entry into India is valid and he is not an illegal immigrant. The court examined various judgments, including *Chairman, Railway Board v. Chandrima Das* and *Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta*, to determine the extent of rights available to foreign nationals. The court concluded that fundamental rights under Articles 19(1)(d) and (e) are unavailable to foreigners, and their rights are confined to Article 21 for life and liberty, which does not include the right to reside and settle in India.
  
  3. Validity and Implications of the Cancellation of the PIO Card:
  The petitioner received a communication from respondent No. 3 informing him that his PIO Card had been canceled by the Ministry of Home Affairs, and he was required to hand it over. The court referred to the PIO Card Scheme, 2002, particularly Clause 11(e), which allows the Central Government to cancel the PIO Card if it is not conducive to public interest without assigning reasons. The court held that the petitioner was aware that the PIO Card was a concession and not a right, and the Central Government has unfettered discretion to cancel it in public interest.
  
  Conclusion:
  The petition was dismissed as the petitioner does not hold a constitutional or statutory right to challenge the cancellation of the PIO Card. The court found no threat to the petitioner's life or liberty and upheld the Central Government's executive action. The operation of the order was suspended for two weeks to allow the petitioner to approach the Hon'ble Supreme Court.

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• 2009 (9) TMI 1038
  

  Grant of concessional rates to magazines - advertisement in the Reader's Digest issue - HELD THAT:- The advertisement in question was by Canara Bank. It was contended in that said case that "the petitioner collected the advertisement, printed it, put it at a proper place in the magazine, bound the magazine and distributed the magazine." It was observed that the advertisement had been printed for the advertiser, namely the Canara Bank and then had been sent to the publisher, i.e., Reader's Digest, for distribution. Therefore, Clause I of the note below Clause 132 of the Post Office Guide (Corresponding to Clause 139 referred to hereinbefore) was attracted. As regards the numbering of the pages it was found that they were numbered as 148 c, etc. and therefore if the pages were pulled out, it did not detract from the value of the magazine. However, it was clarified that if the pages had been numbered consecutively it would not infringe note (i).

  We turn to the impugned advertisement itself. The first page of the advertisement indicates the page number as 55 and at the bottom it is clearly printed: "Reader's Digest/December 2005". Although the other pages of the Calendar 2006 are not consecutively numbered, the last page indicates the page number as 82 and again at the bottom carries the words "Reader's Digest/December 2005". This, therefore, conforms to the requirement of the clarification issued by the department on 25/28.06.1999.

  In the impugned letter dated 21.11.2005 written by the department declining the concessional tariff it is merely stated that the calendar did not conform to the conditions contained in the letter dated 09.10.2001. That letter had stated that "advertisement will be numbered in running numerical sequence and will also have the name of the issue, month printed in the prominent position". The specific conditions listed out in this letter have already been extracted in para 3 hereinbefore. This Court does not find any of them having been violated as far as the present case is concerned. Further the need for numbering each page of the advertisement was already dispensed with by the department itself in its clarificatory circular dated 25/28.06.1999.

  This Court finds that the advertisement in question forms part of the December 2005 issue of Reader's Digest and the pages of the advertisement have been expressly included in the total number of pages of the said issue. The first and last page of the advertisement is in sequence with the overall pagination of the issue. The name of the magazine and issue month is printed in a prominent position both in the first and last page of the magazine. Further to remove any doubts the readers have been informed in page 1 of the issue that the issue includes the Toyota advertisement which is at pages 55 to 82 of the magazine.

  Accordingly, this Court finds no ground to interfere with the impugned judgment of the learned single Judge. The appeal is accordingly dismissed.

  In the considered view of this Court, the impugned advertisement is in conformity with the requirement of the law as explained by the circulars issued by the department itself. Consequently, there is no merit in the appeal. It is dismissed.

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• 2009 (9) TMI 1037
  
  Issues Involved:
  1. Constitutionality of the Reserve Bank of India (RBI) master circular dated July 1, 2008.
  2. Jurisdiction of the grievance redressal committee of the bank.
  3. Alleged violation of principles of natural justice.
  4. Alleged bias in the decision-making process.
  5. Applicability of the master circular to the transaction in question.
  6. Maintainability of the writ petition under Article 226 of the Constitution.
  7. Availability of an alternative remedy through arbitration under the Credit Information Companies (Regulation) Act, 2005.
  8. Res judicata and constructive res judicata.
  
  Detailed Analysis:
  
  Constitutionality of the RBI Master Circular:
  The petitioners challenged the RBI master circular on the grounds that it was unconstitutional, arguing that it allowed the bank to act as both judge and jury, violating the principle of natural justice. They contended that Clause 3 of the master circular was arbitrary and inherently biased, as it left the decision entirely in the hands of the bank's internal committees. The court, however, upheld the validity of the master circular, noting that it was a policy decision made in public interest to ensure the integrity of the financial system. The court referred to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which had similarly been upheld despite its stringent measures.
  
  Jurisdiction of the Grievance Redressal Committee:
  The petitioners argued that the grievance redressal committee of the bank acted without jurisdiction, as the master circular applied only to lender-borrower relationships, which they claimed did not exist between the bank and the petitioner company. The court examined the nature of the transactions and the terms of the agreements between the parties, ultimately finding that the bank had overstepped its jurisdiction in applying the master circular to the petitioner company. Consequently, the decision of the grievance redressal committee was set aside.
  
  Alleged Violation of Principles of Natural Justice:
  The petitioners claimed that the bank violated principles of natural justice by not providing adequate documentation and evidence that led to the initial decision to classify the petitioner as a willful defaulter. The court found that while there were procedural lapses, they did not amount to a violation of natural justice significant enough to invalidate the entire process. The court emphasized substantial compliance with procedural requirements over strict adherence.
  
  Alleged Bias in the Decision-Making Process:
  The petitioners alleged bias due to the presence of a particular individual, Mr. Sathe, on the grievance redressal committee, who had represented the bank in other disputes against the petitioner company. The court noted that the petitioners had not raised this objection during the proceedings before the committee and had effectively waived their right to challenge the composition of the committee. The court held that mere association in other matters did not constitute bias unless there was a clear demonstration of personal animosity or prejudice.
  
  Applicability of the Master Circular to the Transaction in Question:
  The core issue was whether the master circular applied to the derivative transactions between the bank and the petitioner company. The court scrutinized the definitions and provisions of the master circular and related banking laws, ultimately concluding that the master circular did not encompass the type of transactions in question. The court noted that the terms "borrower" and "lender" in the master circular implied traditional credit facilities, not derivative transactions.
  
  Maintainability of the Writ Petition Under Article 226:
  The respondents argued that the writ petition was not maintainable as the bank was a private entity and not a "state" or "authority" under Article 12 of the Constitution. The court, however, held that the public character of the duty involved in invoking the master circular brought the matter within the ambit of Article 226. The court emphasized that the nature of the grievance and the public interest involved justified judicial review.
  
  Availability of an Alternative Remedy Through Arbitration:
  The respondents contended that the petitioners should seek remedy through arbitration as provided under the Credit Information Companies (Regulation) Act, 2005. The court acknowledged the existence of an alternative remedy but held that it was not efficacious in this case, as the arbitral tribunal would not have the authority to address the challenge to the validity of the master circular. The court found that the fundamental question of jurisdiction warranted judicial review.
  
  Res Judicata and Constructive Res Judicata:
  The respondents argued that the petition was barred by res judicata and constructive res judicata due to a previous petition filed by the petitioners. The court examined the previous order and found that it had left all questions open for the grievance redressal committee to decide. Therefore, the court held that the principle of res judicata did not apply, and the petitioners were not precluded from challenging the validity of the master circular in the current proceedings.
  
  Conclusion:
  The court set aside the decision of the grievance redressal committee dated April 7, 2009, declaring the petitioner company as a willful defaulter. The court found that the bank had acted without jurisdiction in applying the master circular to the transactions in question and that the petitioners' challenge to the validity of the master circular was maintainable. The court did not find any apparent mala fides on the part of the bank and did not award costs.

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• 2009 (9) TMI 1036
  
  Issues involved: Dispute over non-payment of telephone bill, jurisdiction of Consumer Forum vs. special remedy under Section 7B of the Indian Telegraph Act.
  
  The judgment pertains to a dispute where the telephone connection of the respondent was disconnected due to non-payment of the telephone bill. The respondent filed a complaint before the District Consumer Disputes Redressal Forum, which directed the re-connection of the telephone and payment of compensation. The appellant challenged this in the High Court of Kerala, arguing that the Consumer Forum lacked jurisdiction. The Full Bench of the High Court dismissed the writ appeal, leading to the current appeal before the Supreme Court.
  
  The Supreme Court analyzed the provisions of Section 7B of the Indian Telegraph Act, which provides for arbitration of disputes concerning telegraph lines. The Court noted that when a special remedy is provided under a specific law, such as Section 7B, it implies that the remedy under the Consumer Protection Act is barred. The Court highlighted Rule 413 of the Telegraph Rules, stating that telephone services are subject to these rules, and a telephone connection can be disconnected for non-payment under Rule 443.
  
  Citing the principle that a special law overrides a general law, the Court held that the High Court erred in its approach. The Court referred to a previous judgment regarding the jurisdiction of the National Commission in specific matters, emphasizing that specialized bodies should handle disputes within their domain. Consequently, the Supreme Court allowed the appeal, setting aside the judgments of the High Court and the District Consumer Forum.
  
  In conclusion, the Supreme Court allowed the appeal, overturning the decisions of the lower courts. No costs were awarded in this matter.

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• 2009 (9) TMI 1035
  

  High Court jurisdiction u/s 482 of the Code to interfere with the statutory power of investigation by police into a cognizable offence - Commission of offences u/s 406 and 420 of the IPC - while the investigation was in progress, for some inexplicable reasons, the respondent moved the High Court u/s 482 - seeking directions to the police to seize an amount of ₹ 2,28,00,000/- from the appellants - facilitating the registration of 64 acres of land under the MOU which amount is alleged to have been withheld by the appellants together with a sum of ₹ 1 crore which is stated to have been paid by him to the appellants - Whether it is open to the High Court in exercise of its jurisdiction u/s 482 of the CrPC to interfere with the statutory power of investigation by police into a cognizable offence?

  HELD THAT:- It is the statutory obligation and duty of the police to investigate into the crime and the Courts normally ought not to interfere and guide the investigating agency as to in what manner the investigation has to proceed. In M.C. Abraham & Anr. V. State of Maharashtra & Ors.[2002 (12) TMI 650 - SUPREME COURT], this Court observed:

  ''Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection."

  The High Court, without recording any reason whatsoever, directed the police that it is obligatory on their part to record statements from witnesses, arrest, seizure of property and filing of charge sheet. It is difficult to discern as to how such directions resulting in far reaching consequences could have been issued by the High Court in exercise of its jurisdiction u/s 482 of the Code.

  The High Court interfered with the investigation of crime which is within the exclusive domain of the police by virtually directing the police to investigate the case from a particular angle and take certain steps which the police depending upon the evidence collected and host of other circumstances may or may not have attempted to take any such steps in its discretion. It is not necessary that every investigation should result in arrest, seizure of the property and ultimately in filing of the charge sheet.

  The police, in exercise of its statutory power coupled with duty, upon investigation of a case, may find that a case is made out requiring it to file charge sheet or may find that no case as such is made out. It needs no reiteration that the jurisdiction u/s 482 of the Code conferred on the High Court has to be exercised sparingly, carefully and with caution only where such exercise is justified by the test laid down in the provision itself.

  The High Court, without realizing the consequences, issued directions in a casual and mechanical manner without hearing the appellants. The impugned order is a nullity and liable to be set aside only on that score.

  Whether there was any occasion or necessity to make those "observations" even if they are to be considered to be observations and not any directions ? - It is not even remotely suggested that there was any deliberate inaction or failure in the matter of discharge of duties by the police. There was no allegation of any subversion of processes of law facilitating the accused to go scot-free nor there is any finding as such recorded by the High Court in its order

  The power u/s 482 of the Code can be exercised by the High Court either suo motu or on an application (i) to secure the ends of justice; (ii) the High Court may make such orders as may be necessary to give effect to any order under the Code; (iii) to prevent abuse of the process of any Court. There is no other ground on which the High Court may exercise its inherent power.

  The High Court is not expected to make any casual observations without having any regard to the possible consequences that may ensue from such observations. Observations coming from the higher Courts may have their own effect of influencing the course of events and process of law. For that reason, no uncalled for observations are to be made while disposing of the matters and that too without hearing the persons likely to be affected. The case on hand is itself a classic illustration as to how such observations could result in drastic and consequences of far reaching in nature. We wish to say no more.

  For the aforesaid reasons, we find it difficult to sustain the impugned judgment of the High Court. Leave granted. The appeals are accordingly allowed and the impugned order is set aside.

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• 2009 (9) TMI 1034
  
  Issues Involved:
  1. Enforceability of the foreign award under Part II Chapter I of the Arbitration & Conciliation Act, 1996.
  2. Whether the award had become binding under Section 48(1)(e) of the Arbitration & Conciliation Act, 1996.
  3. Whether the award was contrary to public policy of India.
  4. Whether the award was enforceable despite not being stamped as per the Indian Stamp Act.
  
  Summary:
  
  1. Enforceability of the Foreign Award:
  The Execution Petitioner/Decree Holder filed a petition for enforcement of a foreign award dated 22.1.2001 under Part II Chapter I of the Arbitration & Conciliation Act, 1996. The petitioner complied with all conditions u/s 47, including filing a certified copy of the award, the Charter Party Agreement, and an affidavit confirming no appeal was filed against the award in England. Despite repeated opportunities, the Judgment Debtor/respondent did not file an application u/s 48 nor a response to the Execution Petition. The matter was fixed for arguments on enforceability, and the Judgment Debtor was permitted to address arguments on 7th July, 2009.
  
  2. Binding Nature of the Award:
  The Judgment Debtor argued that the award had not become binding as per Section 66 of the Arbitration Act, 1996 (England) and u/s 48(1)(e) of the Arbitration & Conciliation Act, 1996 (India). The Court clarified that the enforceability of a foreign award in India is determined under Part II of the Arbitration & Conciliation Act, 1996, not under Section 66 of the English Arbitration Act. Since the Judgment Debtor did not challenge the award in England, the plea that the award had not become binding was baseless.
  
  3. Public Policy:
  The Judgment Debtor contended that the award was contrary to public policy, citing duress in the execution of Addendum 3. The Arbitrator had considered the evidence and concluded that the pressure exerted by the Owners was not sufficient to vitiate the Charterers' consent. The Court held that the Arbitrator's decision on duress, being a mixed issue of law and facts, could not be re-evaluated by the Court and did not constitute a violation of public policy.
  
  4. Stamping of the Award:
  The Judgment Debtor argued that the award was not stamped as per the Indian Stamp Act and relied on a Punjab & Haryana High Court judgment. However, the Supreme Court in Harendera H. Mehta and Ors. v. Mukesh H. Mehta and Ors. clarified that a foreign award does not require registration under the Registration Act. The Court held that the issue of stamp duty cannot impede the enforceability of a foreign award.
  
  Conclusion:
  The Court found no merit in the issues raised by the Judgment Debtor. The foreign award was held executable, and the Decree Holder was permitted to encash the bank guarantee issued by the Judgment Debtor. If any further amount remained unpaid, the Decree Holder could take steps for further execution.

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