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2008 (8) TMI 989
Issues Involved:
1. Delay in execution of the detention order and its justification.
2. Impact of delay on the validity of the detention order and the detenu's release.
3. Burden of proof regarding the detenu's availability for service of the detention order.
Issue-Wise Detailed Analysis:
1. Delay in Execution of the Detention Order and its Justification:
The court examined whether the detaining and executing authorities satisfactorily explained the delay in executing the detention order. The detenu was arrested on 21st October 2005, released on bail on 11th November 2005, and the detention order was issued on 14th November 2006 but served only on 1st February 2008. The authorities argued that the detenu was absconding, making repeated attempts to serve the order futile. Actions under sections 7(1)(a) and 7(1)(b) of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, were taken, including issuing a notification in the Official Gazette and apprehending certain persons based on secret intelligence, which eventually led to the detenu's identification and service of the order.
2. Impact of Delay on the Validity of the Detention Order and the Detenu's Release:
The court deliberated whether the delay in execution alone could invalidate the detention order. It was emphasized that the detenu cannot benefit from his own wrong, such as absconding to evade service. The court referenced various judgments, including those from the Supreme Court, establishing that if the delay is due to the detenu's actions, the link between the detenu's prejudicial activities and the detention order remains intact. The authorities' efforts to serve the order, despite the detenu's non-traceability, were deemed sufficient to uphold the detention order.
3. Burden of Proof Regarding the Detenu's Availability for Service of the Detention Order:
The court analyzed the shifting burden of proof. Initially, the detaining and executing authorities must prove they made all possible efforts to serve the detention order. Once a notification under section 7(1)(b) is issued, the burden shifts to the detenu to demonstrate that he was not absconding and had informed the authorities of his whereabouts. The court concluded that the detenu failed to meet this burden, as he did not comply with the notification requirements nor informed the authorities of his whereabouts within the specified time.
Conclusion:
The court found that the authorities had taken all necessary steps to serve the detention order promptly and that the delay was justified due to the detenu's absconding. The detenu's failure to comply with the legal requirements under section 7(1)(b) further validated the authorities' actions. Consequently, the detention order was upheld, and the petition was dismissed. The court also dismissed the argument regarding the lack of efforts to cancel the detenu's bail, aligning with previous judgments on similar contentions.
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2008 (8) TMI 988
Issues involved: Habeas Corpus petition challenging detention order due to delay in execution.
Judgment Summary:
Issue 1: Delay in execution of detention order
- The petitioner, brother of the co-detenu, challenged the detention order on the grounds of delay in execution.
- A previous judgment in a similar case was delivered on 14th August 2008, where the delay was deemed justified, leading to the dismissal of the petition.
- The current petition raised identical arguments regarding the delay in execution of the detention order.
- The chronology of events leading to the execution of the detention order on the present detenu was outlined.
- The court found that the delay in execution was properly explained by the authorities, similar to the findings in the previous case.
- Noting the issuance of notification u/s 7(1)(b) of the COFEPOSA Act, the court concluded that no gross delay was evident in executing the detention order.
- Since no other points were raised challenging the detention order, the court dismissed the writ petition based on the legal aspects discussed in the previous judgment.
This judgment addresses the habeas corpus petition filed by the petitioner challenging a detention order based on delay in execution, with the court finding the delay justified and dismissing the petition accordingly.
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2008 (8) TMI 987
The Bombay High Court upheld the decision based on the reliability of the Chartered Accountants certificate for claiming a refund. The appeal was rejected as no question of law was found to arise.
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2008 (8) TMI 986
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
The Supreme Court dismissed the appeals as the findings by the Tribunal were considered factual and did not require interference. No costs were awarded. (Citation: 2008 (8) TMI 985 - SC)
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2008 (8) TMI 984
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
Issues Involved:
1. Deduction u/s 80P(2)(c)
2. Deduction u/s 80P(2)(d)
3. Application of Rule 8D read with section 14A
4. Deduction u/s 80IB for Cattle Feed Plant
5. Deduction u/s 80IB for Banas-II Dairy Unit
Summary:
1. Deduction u/s 80P(2)(c):
The Department contended that the assessee's claim of Rs. 50,000/- deduction u/s 80P(2)(c) was incorrect as the assessee falls under section 80P(2)(b). The assessee argued that it is not a primary cooperative society as defined in section 80P(2)(b) and thus eligible for the deduction u/s 80P(2)(c). The Tribunal upheld the assessee's claim, stating that the assessee is engaged in activities other than those specified in clauses (a) or (b) of section 80P(2), and thus, the deduction of Rs. 50,000/- is allowable. The Department's appeal on this ground was rejected.
2. Deduction u/s 80P(2)(d):
The Department challenged the allowance of deduction of interest and dividend income u/s 80P(2)(d). The assessee argued that similar issues were decided in its favor in previous years by the ITAT. The Tribunal noted that the CIT(A) followed the Tribunal's earlier decisions and found no evidence that the investments were made from borrowed funds. Thus, the Tribunal upheld the CIT(A)'s decision to allow the deduction, rejecting the Department's appeal on this ground.
3. Application of Rule 8D read with section 14A:
The assessee contested the application of Rule 8D read with section 14A for calculating expenditure related to earning exempt income. The Tribunal did not provide a detailed discussion on this issue in the provided text.
4. Deduction u/s 80IB for Cattle Feed Plant:
The assessee argued that the deduction u/s 80IB for the Cattle Feed Plant was previously allowed by the Tribunal for the assessment year 2004-05. The Department requested similar directions as given in the earlier year. The Tribunal restored the issue to the Assessing Officer (A.O.) to examine the claim afresh, following the directions given in the earlier year, and directed the assessee to furnish necessary information, including an auditor's certificate if required.
5. Deduction u/s 80IB for Banas-II Dairy Unit:
The assessee claimed deduction u/s 80IB for Banas-II Dairy Unit, which was not claimed in the original return but was later supported by a fresh audit report. The CIT(A) dismissed the claim due to the late submission and discrepancies in the audit reports. The Tribunal noted that the issue was covered by its decision for the assessment year 2004-05, where the deduction was allowed. The Tribunal restored the matter to the A.O. to examine the audit report and the eligibility for deduction, considering the Tribunal's earlier decision.
Conclusion:
The appeal of the Department was dismissed, and the appeal of the assessee was allowed in part. The Tribunal directed the A.O. to re-examine certain issues following the Tribunal's earlier decisions and after giving the assessee an opportunity to be heard. The order was pronounced on 26.02.2010.
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2008 (8) TMI 982
Issues involved:
The issues involved in this case are the delay in passing the Order of Detention, non-consideration of a vital document (Nil Panchanama) by the Detaining Authority, and the allegation of total non-application of mind by the Detaining Authority.
Delay in passing the Order of Detention:
The Detaining Authority detained the individual under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Detaining Authority passed the Order of Detention against several persons, including the detenu, based on intelligence gathered by the Directorate of Revenue Intelligence. The detenu's brother challenged the detention on the grounds of delay in passing the order. The Detaining Authority received the proposal on 14.12.2006, and the order was finally passed on 11.4.2007. The Detaining Authority claimed to have considered a 7419-page document before approving the detention, but the court found discrepancies in the timeline presented in the affidavit. The court emphasized the need for careful consideration before exercising the power to detain individuals without trial. Due to the delay and procedural irregularities, the High Court quashed the Order of Detention dated 11th February, 2008, and ordered the immediate release of the detenu, Amit Bajaj.
Non-consideration of vital document (Nil Panchanama):
The Detaining Authority's decision to detain the individual was also challenged on the grounds that a vital document, the Nil Panchanama, was not considered before passing the Order of Detention. The Detaining Authority's affidavit mentioned the extensive scrutiny of documents before approving the detention. However, the court found discrepancies in the timeline presented by the Detaining Authority, raising doubts about the thoroughness of the decision-making process. The failure to consider crucial documents like the Nil Panchanama raised concerns about the validity of the detention order. The court highlighted the importance of proper consideration of all relevant documents and evidence before exercising the power to detain individuals. Ultimately, the High Court quashed the Order of Detention due to these procedural lapses.
Total non-application of mind by the Detaining Authority:
The detenu's brother also alleged that the Detaining Authority showed a total non-application of mind in passing the Order of Detention. The Detaining Authority claimed to have carefully reviewed the proposal and supporting documents before approving the detention. However, the court found discrepancies in the timeline presented in the Detaining Authority's affidavit, casting doubt on the thoroughness of the decision-making process. The court emphasized the need for Detaining Authorities to apply their minds judiciously when exercising the power to detain individuals without trial. The court highlighted the extraordinary nature of this power and stressed the importance of exercising it with care and diligence. Due to the concerns raised about the Detaining Authority's decision-making process, the High Court quashed the Order of Detention and ordered the immediate release of the detenu, Amit Bajaj.
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2008 (8) TMI 981
Issues involved: Appeal against Tribunal's order denying deduction under s. 80-IA for miscellaneous income including DEPB license and interest on margin money deposit.
Summary:
The appellant, engaged in cashew kernel manufacture and export, filed income return for 1999-2000 admitting total income of Rs. 11,99,560. Assessment was reopened under s. 147, resulting in total income determination of Rs. 96,60,427, with AO denying deduction under s. 80-IA for DEPB license and interest on margin money deposit. CIT(A) and Tribunal upheld AO's decision. Appellant raised questions of law regarding entitlement to deduction under s. 80-IA for DEPB and interest on margin money deposits.
In a similar case, the Court held that profits eligible for deduction under s. 80HH must be directly derived from the industrial undertaking itself, not from any other source. The Court emphasized the direct nexus between income and the industrial undertaking for claiming deductions under s. 80HH.
Regarding interest earned on amounts retained by the bank, the Court ruled that such interest does not qualify for deduction under s. 80-I as it is linked to better business prospects and lacks nexus with export earnings. The Court cited previous decisions to support this stance, emphasizing the need for a clear connection between income and the industrial activity for claiming deductions under s. 80-I.
The Court dismissed the appeal, stating that the questions of law raised had already been answered against the assessee based on previous judgments. The decision in the cited case was deemed applicable to the current issue, leading to the dismissal of the appeal and connected miscellaneous petition.
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2008 (8) TMI 979
Issues:
1. Interpretation of provisions under the Income-tax Act, 1961 regarding assessment of unexplained deposits in the name of a third person.
2. Application of rule of natural justice in the context of cross-examination of witnesses in income tax proceedings.
3. Rebuttal of presumption under section 132(4-A) of the Income Tax Act regarding ownership of documents found during search and seizure actions.
Analysis:
1. The case involved an appeal under section 260-A of the Income-tax Act, 1961 against the order of the Income Tax Appellate Tribunal regarding the assessment year 1991-92. The Tribunal upheld the addition of unexplained deposits in the bank account of the assessee's unmarried daughter, relying on section 132(4-A) which allows for presumption of ownership of documents found during search and seizure actions. The Tribunal found that the assessee failed to explain the source of the deposit in the daughter's account, leading to the addition being justified.
2. The petitioner contended that the presumption under section 132(4-A) was rebuttable, and evidence was led to rebut the presumption. However, the Tribunal concluded that the assessee failed to rebut the presumption, which was considered a finding of fact. The petitioner argued for the application of the rule of natural justice, specifically the opportunity for cross-examination of witnesses, especially the daughter of the appellant. The Tribunal's decision was based on the failure to rebut the presumption, and no substantial question of law was found to arise from the order.
3. The judgment emphasized that while the presumption under section 132(4-A) is rebuttable, the burden of proof lies on the assessee to provide a satisfactory explanation for the unexplained deposits. In this case, the Tribunal found that the assessee did not discharge this burden, leading to the confirmation of the addition. The Tribunal's decision highlighted the importance of providing evidence to counter the presumption established under the Income Tax Act, ultimately resulting in the dismissal of the appeal due to the failure to rebut the presumption and lack of substantial legal issues arising from the order.
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2008 (8) TMI 978
... ...
... ... ..... 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
Issues Involved:
1. Infringement of the plaintiff's trademarks "Ayur" and "Ayu" by the defendant.
2. Passing off by the defendant using marks similar to "Ayur" and "Ayu".
3. Defendant's application for registration of similar marks.
4. Plaintiff's claim of exclusivity over the word marks "Ayur" and "Ayu".
5. Defendant's opposition to the plaintiff's interlocutory petition and vacating application.
6. Consideration of international trademark registrations under the Paris Convention.
7. Application of the Trade Marks Act, 1999 and relevant sections.
8. Analysis of previous judgments and their applicability.
Detailed Analysis:
1. Infringement of Trademarks:
The plaintiff asserted its exclusive right over the word marks "Ayur" and "Ayu" based on its label registrations and sought to stop the defendant's use of marks like "Ayucare", "Ayurcare", "Himani Ayurdhara", and "Himani Ayucare". The court found that the plaintiff's claim of infringement based on its "Ayur" mark as part of its device registrations was unacceptable at the interlocutory stage. The word "Ayur" was deemed not capable of distinguishing the goods or services of a person from those of another, as it seemed to designate the nature of the goods.
2. Passing Off:
The plaintiff argued that the defendant's use of similar marks would cause damage to its credibility and reputation. The court noted that the tort of passing off is based on the misrepresentation leading the public to believe that the defendant's goods are those of the plaintiff. The court found that the plaintiff did not establish a strong case of passing off for the marks "Ayurcare" and "Himani Ayurdhara". However, the plaintiff was entitled to an injunction against the defendant's use of the mark "Ayucare" on the strength of its registered word mark "Ayu".
3. Defendant's Application for Registration:
The defendant applied for registration of the marks "Ayurcare" and "Ayucare" in various classes. The plaintiff opposed these applications based on its registered device and word marks. The court found that the defendant's use of "Ayucare" without any distinguishing feature was likely to cause confusion and associate the product with the plaintiff's "Ayu" mark.
4. Plaintiff's Claim of Exclusivity:
The plaintiff claimed exclusivity over the word marks "Ayur" and "Ayu" based on its registrations and previous enforcement actions. The court found that the word "Ayur" was not distinctive enough to warrant exclusivity and that the plaintiff's claim of infringement based on this word was not strong enough at this stage.
5. Defendant's Opposition and Vacating Application:
The defendant opposed the plaintiff's interlocutory petition and filed a vacating application to recall the ex parte ad interim order. The court modified the initial order to restrict the injunction within India and allowed the defendant's overseas business to continue unaffected.
6. International Trademark Registrations:
The plaintiff referenced its registrations in convention countries under the Paris Convention to claim exclusivity in India. The court noted that the Paris Convention principle of equal treatment does not imply that a common Indian word registered in another country would automatically be protected in India.
7. Application of Trade Marks Act, 1999:
The court considered Sections 17, 28, and 29 of the Trade Marks Act, 1999. It was found that an infringement action may not be based on an unregistered part of a registered whole trademark. The word "Ayur" was not found registrable under the Act for protection, and the plaintiff's claim of infringement based on this word was rejected.
8. Analysis of Previous Judgments:
The court analyzed previous judgments, including those from the Delhi High Court and other courts, to determine the distinctiveness and secondary meaning of the marks. It was found that the plaintiff's mark "Ayur" did not have a strong enough secondary meaning to warrant exclusivity. The court also noted that previous decisions involving different defendants did not necessarily bind the present case.
Conclusion:
The court granted an injunction restraining the defendant from using the mark "Ayucare" without the distinguishing feature "Himani". The rest of the plaintiff's claims were to await trial. The court vacated the remainder of the subsisting interim order and disposed of the applications without any order as to costs. The plaintiff's request for a stay of the order was refused.
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2008 (8) TMI 976
Issues Involved:
1. Prematurity and Cause of Action
2. Territorial Jurisdiction
3. Benami Transactions Prohibition Act
4. Permanent Injunction
Summary:
1. Prematurity and Cause of Action:
The defendants filed an application u/s Order 7 Rule 11 CPC for rejection of the plaint on grounds of prematurity and lack of cause of action. The plaintiff sought declarations regarding properties based on a Will dated 29th October 2002, which was pending probate. The court noted that the plaintiff's right to property was contingent upon the probate outcome, making the suit premature. The court referenced several cases, including *Ram Shankar v. Balakdas* and *Manmohan Singh v. Joginder Kaur*, to support the position that a suit based on an unprobated Will is not maintainable. The court concluded that the plaint did not disclose any cause of action for the reliefs of declaration claimed, as the plaintiff's title to the properties depended on the pending probate proceedings.
2. Territorial Jurisdiction:
The defendants argued that the court lacked territorial jurisdiction as the properties in question were outside Delhi. The court referred to Section 16(d) CPC, which mandates that suits concerning immovable property be filed in the court within whose jurisdiction the property is situated. The court cited *Harshad Chiman Lal Modi v. DLF Universal Ltd.* and other cases to affirm that the relief of declaration would entail determining rights to immovable property, which falls under the jurisdiction of the local court where the property is located. Consequently, the court held that it lacked territorial jurisdiction to entertain the suit.
3. Benami Transactions Prohibition Act:
The defendants contended that the plaintiff's claim was barred by the Benami Transactions Prohibition Act, 1988. However, the court found this argument untenable, referencing *Nand Kishore v. Sushil Mehra*, which held that neither filing a suit nor taking a defense in respect of benami transactions involving property purchased in the name of one's wife is prohibited under Section 4 of the Benami Act. Thus, the plaint was not rejected on this ground.
4. Permanent Injunction:
The plaintiff also sought a permanent injunction to restrain the defendants from dealing with the properties. The court noted that this relief was consequential to the relief of declaration. Since the plaint for declaration was rejected, the relief of permanent injunction did not survive. Additionally, the court cited Section 41(h) of the Specific Relief Act, which bars the relief of permanent injunction when an equally efficacious remedy is available, such as applying to the probate court under the Indian Succession Act, 1925.
Conclusion:
The court rejected/dismissed the plaint for not disclosing any cause of action, being premature, and lacking territorial jurisdiction. The relief of permanent injunction was also barred by Section 41 of the Specific Relief Act. Each party was directed to bear their own costs.
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2008 (8) TMI 975
Issues Involved:
1. Prolonged delay in completing the enquiry under Section 202 Cr.P.C. and its impact on the right to a speedy trial under Article 21 of the Constitution.
2. Non-examination of all witnesses mentioned in the complaint petition and its compliance with the proviso to Section 202(2) Cr.P.C.
3. Whether the impugned order taking cognizance and summoning the accused was passed mechanically without application of judicial mind.
Detailed Analysis:
1. Prolonged Delay and Right to Speedy Trial:
The petitioners argued that a delay of nine years in completing the enquiry under Section 202 Cr.P.C. violated their right to a speedy trial under Article 21 of the Constitution. The court acknowledged that Article 21 guarantees the right to life and liberty, which includes a speedy trial. However, it concluded that the delay did not infringe on the petitioners' rights because they were not required to attend court or file for bail until summons were issued under Section 204 Cr.P.C. The court emphasized that the delay, while deplorable, did not prejudice the accused as they only became involved in the case after the summons were issued in 2006. The court noted that in complaint cases, the right to a speedy trial accrues only after the issuance of summons, unlike in police cases where it begins with the apprehension of the accused.
2. Non-Examination of All Witnesses:
The petitioners contended that the complainant's failure to examine all witnesses mentioned in the complaint petition violated the mandatory provisions of the proviso to Section 202(2) Cr.P.C. The court examined Sections 200 and 202 Cr.P.C., noting that Section 200 allows a Magistrate to examine the complainant and any witnesses present. The court clarified that the proviso to Section 202(2) mandates the Magistrate to give the complainant an opportunity to produce all witnesses but does not compel the complainant to examine every witness named in the complaint. The court cited previous judgments, including Naresh Singh v. State of Bihar, to support the view that the complainant need only produce witnesses they wish to examine. The court concluded that the non-examination of all witnesses did not invalidate the proceedings.
3. Mechanical Issuance of Summons:
The petitioners argued that the Magistrate's order taking cognizance and summoning the accused was mechanical and lacked judicial application of mind. The court distinguished between the requirements for issuing summons under Sections 190 and 204 Cr.P.C. and those under Section 319 Cr.P.C. It noted that while Section 319 requires cogent reasons for summoning an additional accused, Sections 190 and 204 only require the Magistrate to be prima facie satisfied that an offence is made out. The court found that the Magistrate had perused the complaint, the complainant's statement, and the evidence before taking cognizance and issuing summons, thus fulfilling the requirement of judicial application of mind. The court rejected the petitioners' reliance on the case of Pepsi Foods Limited, affirming that the Magistrate's order was not mechanical.
Conclusion:
The court dismissed the writ petition, concluding that:
- The prolonged delay in completing the enquiry under Section 202 Cr.P.C., while undesirable, did not violate Article 21 of the Constitution.
- The non-examination of all witnesses named in the complaint did not contravene the proviso to Section 202(2) Cr.P.C.
- The Magistrate's order taking cognizance and summoning the accused was not mechanical and demonstrated judicial application of mind.
The petitioners were advised that they could raise relevant submissions at the stage of framing of charges.
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2008 (8) TMI 974
Issues Involved:
1. Termination of the arbitrator's mandate due to efflux of time.
2. Waiver of the condition stipulating the time within which the award was to be made.
3. Determination of when the arbitrator entered upon the reference.
4. Validity of the arbitrator's appointment and jurisdiction.
5. The impact of parties' conduct on the waiver of time stipulation.
Issue-wise Detailed Analysis:
1. Termination of the Arbitrator's Mandate Due to Efflux of Time:
The petitioner sought a declaration that the arbitrator's mandate had terminated due to the expiration of the time stipulated in the arbitration agreement dated 13.12.1996. Clause 91(b) of the agreement required the award to be made within two years of the arbitrator entering upon the reference, with a possible extension of twelve months. It was admitted that the stipulated time had expired.
2. Waiver of the Condition Stipulating the Time Within Which the Award Was to Be Made:
Despite the expiration of the stipulated time, the court found that the petitioner had waived the condition. The waiver was evidenced by the petitioner's participation in arbitration proceedings beyond the stipulated period without raising any objections. The court noted that the petitioner attended meetings, agreed to schedules, and did not object to extensions requested by the respondent, indicating a clear waiver.
3. Determination of When the Arbitrator Entered Upon the Reference:
The court considered various dates proposed by both parties for when the arbitrator entered upon the reference: 19.4.2002, 28.5.2002, 28.6.2002, and 16.10.2002. The court concluded that the arbitrator entered upon the reference on 28.5.2002, when the arbitrator applied his mind to the petitioner's application challenging his jurisdiction. The court distinguished between ministerial acts and adjudicative acts, determining that the arbitrator's consideration of jurisdictional questions constituted entering upon the reference.
4. Validity of the Arbitrator's Appointment and Jurisdiction:
The petitioner contended that the arbitrator's appointment was invalid as it was not made within thirty days of the request, as required by the arbitration agreement. This issue was raised in an application under Section 16 of the Arbitration and Conciliation Act, 1996, and was decided against the petitioner by the arbitrator on 28.6.2002. The court upheld the arbitrator's jurisdiction, noting that the petitioner had waived any objections by participating in the proceedings.
5. The Impact of Parties' Conduct on the Waiver of Time Stipulation:
The court emphasized that the petitioner's conduct, including attending meetings and agreeing to schedules beyond the stipulated period, constituted a waiver of the time condition. The court cited several instances where the petitioner did not object to extensions or the continuation of proceedings, reinforcing the finding of waiver. The court also referred to the principle of waiver under Section 4 of the Arbitration and Conciliation Act, 1996, which is based on general principles such as estoppel.
Conclusion:
The petition was dismissed, with the court finding that the petitioner had waived the stipulation regarding the time within which the award was to be made. The court allowed the arbitration proceedings to continue, providing an eight-week period for the petitioner to challenge the order. The judgment highlighted the importance of parties' conduct in determining waiver and the distinction between ministerial and adjudicative acts in arbitration proceedings.
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2008 (8) TMI 973
The judgment by Appellate Tribunal CESTAT, Ahmedabad found the demand to be prima facie barred by limitation. The case was remanded for decision on the issue in light of relevant legal precedents. The appeal was allowed by way of remand and the stay petition was disposed of.
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2008 (8) TMI 972
Issues involved: Specific performance of agreements, family arrangement deed, failure to carry out partition, ad-interim relief sought.
The judgment pertains to a suit filed by the Plaintiffs seeking specific performance of agreements annexed at Exhibits A, B, and C, related to a family arrangement deed. The Plaintiffs and Defendants, representing two groups, were engaged in business together, with ongoing settlement talks for dividing the property. The Plaintiffs allege that while part of the family arrangement deed has been implemented, the Defendants have failed to carry out the partition as agreed. The Plaintiffs seek ad-interim relief as per prayer clauses (c) and (d) at this stage.
Exhibit A consists of minutes from a meeting held in 2004, while Exhibit 'B' is a family business separation document signed by representatives of both parties. Exhibit 'C' describes the properties allocated to the Bazzardev Sadh Group under the family arrangement deed. The court notes that these documents do not constitute a binding agreement between the parties, as a Mediator was involved in the process. The Mediator lacks the authority to make determinations under relevant laws and rules. Therefore, the court finds no grounds for granting ad-interim relief at this stage.
The court directs the Defendants to file a reply and the Plaintiffs to submit a rejoinder, if any, within two weeks. The Notice of Motion will be scheduled for a hearing in due course, with the Defendants waiving service.
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2008 (8) TMI 971
Issues Involved:
1. Validity of the Show Cause Notice
2. Allegations of Artificial and Misleading Trading
3. Allegations of Acting as an Unregistered Broker
4. Examination of Evidence and Statements
5. Adherence to Principles of Natural Justice
Summary:
1. Validity of the Show Cause Notice:
The Tribunal noted that the show cause notice did not disclose any cause of action or specific violations by the appellant. It was observed that the notice failed to make clear how the appellant violated Regulation 4(b) of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995.
2. Allegations of Artificial and Misleading Trading:
The appellant was accused of creating an artificial and misleading appearance of trading in the scrip of Shonkh Technologies International Ltd. (STIL) and artificially raising its price. However, the Tribunal found that the appellant executed only three minor trades (sell orders) on three different days, which were not capable of affecting the price. The Tribunal concluded that the charge of manipulation could not be established.
3. Allegations of Acting as an Unregistered Broker:
The show cause notice alleged that the appellant acted as a sub-broker without registration, violating Rule 3 of the Securities and Exchange Board of India (Stock Brokers and Sub-Brokers) Rules, 1992. The appellant denied this, stating that it had purchased shares from entities named in the notice and sold them, thus not acting as a sub-broker. The Tribunal noted that there was no finding in the impugned order regarding this charge, implying that the explanation provided by the appellant was accepted.
4. Examination of Evidence and Statements:
The Tribunal examined statements from Mr. Pawan Gupta and Mr. S.K. Gupta. Mr. S.K. Gupta had initially stated that trades were executed by Mr. Pawan Gupta in his name but later retracted this statement. The Tribunal found the retracted statement unreliable and noted that the whole-time member did not record any findings based on it. Therefore, the Tribunal did not rely on this testimony to hold the appellant responsible for manipulating the price of the scrip.
5. Adherence to Principles of Natural Justice:
The Tribunal emphasized the importance of adhering to principles of natural justice, citing the Supreme Court's observations in Canara Bank v. Debasis Das. It highlighted that the show cause notice must be precise and unambiguous, providing the party with a clear understanding of the case to be met. The Tribunal found that the notice in this case did not meet these standards, rendering the impugned order unsustainable.
Conclusion:
The appeal was allowed, and the impugned order was set aside with no order as to costs.
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2008 (8) TMI 970
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
Issues involved: Dispute over an award dated 28.7.1999 between parties regarding supply of helmet combat fibre glass under a work contract.
Summary:
1. The petitioner claimant entered into an agreement with the respondent contractor for the supply of helmet combat fibre glass. After multiple extensions for delivery, the contract was canceled due to the respondent's failure to supply the agreed quantity. The petitioner proceeded with a risk purchase and invoked the arbitration clause, claiming damages for breach of contract.
2. The Sole Arbitrator rejected all three claims of the petitioner, stating that there was a deviation in the risk purchase contract. Consequently, the counter claims raised by the respondent contractor were partially allowed, leading to the petitioner filing objections against the award.
3. The petitioner contended that the award lacked specificity on the deviations in the risk purchase contract. The respondent argued that the Court should not interfere with the Arbitrator's decision, emphasizing that the Arbitrator considered all evidence and was the final authority on the matter.
4. The Court highlighted established legal principles that limit its interference in arbitral awards. It reiterated that the Arbitrator's findings, even if possibly incorrect, are not subject to the Court's review. The Court cannot reevaluate facts or substitute its judgment for that of the Arbitrator.
5. The Court found that the Arbitrator's award was reasoned, as it reflected an application of mind and consideration of arguments and evidence presented. The brevity of reasons provided by the Arbitrator did not warrant rejection of the award, as non-speaking awards have been upheld in certain circumstances.
6. Citing legal precedents, the Court dismissed the petitioner's objections, confirming the impugned award and making it a rule of the Court. No costs were awarded, and the case file was to be archived.
Conclusion: The objections against the award were dismissed, and the impugned award was confirmed by the Court without any costs imposed on either party.
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