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Case Laws
Showing 61 to 80 of 3054 Records
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1949 (9) TMI 17 - HIGH COURT OF NAGPUR
Winding up – Exercise and control of liquidator’s powers ... ... ... ... ..... r decision of the liquidator, that person may apply to the Court, and the Court may confirm, reverse, or modify the act or decision complained of, and make such order in the premises as it thinks just. According to Halsbury, one of the acts against which an application may be made is from his decision as to rejection or admission of a proof for purposes of dividend. That in our opinion covers the present point, also it shows that acts of this nature are decisions , as of course they must be. Rule 338-A, 102 shows that the liquidator has to make an investigation of these claims and, when he has completed it, to file a list. He has therefore to decide whether to include a claimant in the list or not, and what can that be but a decision ? We again stress the generality of the word any in section 183 (5). The appeal is allowed with costs. The lower Court will now hear and determine the objections raised by Saran against the four claims he wishes to contest. Counsel s fee Rs. 100.
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1949 (9) TMI 12 - HIGH COURT OF EAST PUNJAB
Compromise and arrangement ... ... ... ... ..... sanction or refuse to sanction them, and after the sanction has been given the Court does not seem to possess any further powers in regard to those schemes. Beyond this the Court has, in my opinion, no powers, and I would answer the question accordingly. Order of the Court. mdash Where a scheme which is not of the kind mentioned in section 153A or section 153B is sanctioned otherwise than in the course of winding up, the Court sanctioning the scheme has no further seisin on the scheme and has no jurisdiction or powers as the Company Court to entertain any application for enforcing the scheme or modifying the scheme or to adjudicate upon the rights of parties arising under or out of the scheme and parties claiming under the scheme or dehors the scheme must assert their rights in regular suits or other proceedings as may be permissible in law. These applications must, therefore, be laid before the Company Judge to be disposed of in the light of the decision of this Full Bench.
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1949 (9) TMI 11 - HIGH COURT OF BOMBAY
Power of court to rectify register of members and Winding up – Liability as contributories of present and past members
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1949 (8) TMI 27 - NAGPUR HIGH COURT
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... ... ..... o assume, as the lower Court did, that the type of mortgage which they were considering was anomalous. It is because the mortgages before them we to considered to be anomalous mortgages that they folt free to exercise their discretion. As we have said, they point out at p. 94 very plainly that the discretion cannot be exercised when the mortgage is by conditional sale. 12. The mortgage before us is by conditional sale. It is not an anomalous mortgage. Accordingly, following the decision we have quoted, we hold that we have no discretion in the matter and that, therefore, a decree for foreclosure was rightly passed. 13. The last point urged was that the learned Counsel for the Appellant has not been paid his fees. We were, therefore, asked to award him fees in spite of his not having filed a certificate for it. We would not have been able to do this in any case, but the question does not arise now because his client has failed. 14. The appeal fails and is dismissed with costs.
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1949 (8) TMI 26 - NAGPUR HIGH COURT
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... ... ..... tice is given under the Code) and the consent cannot be proved except by a writing. If consent cannot be proved and there is no estoppel as such, it is difficult to see how the right can be defeated when it arises in future. The section by prescribing that only a written consent (sic) shall be valid, has shut out all oral testimony. 62. The vendee is not treated either harshly or unfairly. The vendee is not at the mercy of an unscrupulous pre-emptor because the law allows him ample protection. If the vendee does not insist on a notice or consent in writing, he acts at his own peril. He cannot in view of the special provisions of the Code invoke the doctrine of estoppel because it applies to statements about facts and not to statements regarding one's intention, (sic) and further because no evidence except a consent in writing avails him. 63. I therefore, respectfully agree with my other that the Appellant is entitled to succeed with all costs here and in the Courts below.
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1949 (8) TMI 25 - NAGPUR HIGH COURT
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... ... ..... t. There are a number of them. Even if it be assumed that the application was under Section 162(v), namely, that the company was unable to pay its debts, Section 163(1) shows that the expression "unable to pay its debts" embraces three distinct concepts. There is nothing to show that the application was confined to this particular debt. But even if it was, the cause of action in winding up proceedings under Section 163(1) is the inability of the company to pay its debts and not as here, as the recovery of the debt. The question of recovery does not arise until the winding up order has been made and a liquidator appointed. It is at that stage that the claims against the company are enquired into and decided. Therefore the cause of action in those proceedings and the cause of action here were not the same. It follows that Section 14 is not attracted. 29. The appeal fails and is dismissed with costs. The cross-objection was not pressed and is also dismissed with costs.
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1949 (8) TMI 24 - HIGH COURT OF MADRAS
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... ... ..... t. The lower appellate Court has held that the clubbing together of the three assessments into one and the removal of the names of respondents 2 and 3 from the assessment register without notice to them was improper and that there w as no demand in respect of the property tax on respondents 2 and 3. On these grounds respondents 2 and 3 have been exonerated from liability by the lower appellate Court irrespective of the correctness of its conclusion on the other points in the case. Mr. K. Kuttikrishna Menon, the learned Counsel for the appellant, could not dispute the correctness of the decision of the lower appellate Court on this last point. 6. I reverse the decision of the lower appellate Court and remand the appeal for disposal on the merits. There will be no order as to costs in this second appeal. 7. It is represented that the first respondent has deposited the amount payable by him and that a remand is unnecessary. I therefore direct that the second appeal be dismissed.
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1949 (8) TMI 23 - CALCUTTA HIGH COURT
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... ... ..... ition decree was passed, the Rai Bahadur would be liable to render account in respect of the twelve annas share on a different basis. But still he would continue to be a member of that firm and the partnership would not be in any way affected by the passing of that decree in the partition suit. 19. In my opinion the Tribunal was right when it took the view that the partnership continued and Section 26A was applicable. 20. Vis-a-vis the members of the family of the Rai Bahadur might be liable to account, as I said before, on a different footing. But he did not cease to be a partner of the firm and as such the application was rightly made under Section 26-A on behalf of the firm which was constituted under a proper instrument of partition which specified the individual shares of the partners. 21. The answer to the question put to us must therefore be in the affirmative. The assessees are entitled to their costs of this Reference. Certified for two counsel. Harries C.J. I agree.
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1949 (8) TMI 22 - HIGH COURT OF MADRAS
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... ... ..... pre-sent case, the Act was in force at the time of the institution of the suit. In the latter case it was stated by Rajamannar J. (as he then was), "This amendment was made long after the institution of the suit and it cannot have the result of reviving what was a barred and unenforceable claim at that time." From this passage, it is sought to be argued that if the suit in that case had been instituted after the Act came into force, the decision would have been different. I am unable to agree with this interpretation of the learned Judge's judgment. The real basis of the two decisions of this Court above cited was that the debt sought to be realized became unenforceable long before the amending Act came into force and that the amendment could not operate retrospectively so as to revive a barred debt. 5. For these reasons, I would follow the two decisions of this Court in preference to those of the Patna High Court and dismiss this appeal with costs. 6. No leave.
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1949 (8) TMI 21 - MADRAS HIGH COURT
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... ... ..... to the maintenance of his wife and minor children under all systems of law. The obligation to defray the expenses of the marriages of his sons and daughters is cast by the Hindu law upon a father only if there is any joint family property in his hands and not in other cases. I am bound by the decisions of this Court though they lead to results which I may privately regret. 5. The defendant is a member of the legal profession and has paid a sum of ₹ 500, irrespective of the legal merits of the controversy. This attitude is commendable so far as it goes, but I cannot help expressing my regret that it was not found possible to make a further concession to the unlucky wife and daughter in question especially when the husband has taken a second wife and the estrangement between him and his first wife and his children by her has become complete. 6. The second appeal is dismissed, but there will be no order as to costs either in this or in the lower appellate Court, No leave.
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1949 (8) TMI 20 - PATNA HIGH COURT
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... ... ..... i). Section 4(3) provides that--"Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them." Clause (i) is--"Any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, and in the case of property so held in part only for such purposes, the income applied, or finally set apart for application, thereto." It is quite obvious that fees received by the Bar Council for enrolling advocates or for registering apprentices is not income derived from property held under trust or other legal obligation. The same view was taken by the Madras High Court in Commissioner of Income-tax, Madras v. The Bar Council, Madras(1). The answer to the question referred to us, therefore, must be in the negative. The Income-tax Department is entitled to the costs of the reference which we assess at ₹ 250. Reference answered in the negative.
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1949 (8) TMI 19 - NAGPUR HIGH COURT
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... ... ..... ral other parties, affected thereby, have been content to accept it. 12. In these circumstances I set aside the decree of the lower appellate Court only in so far as it relates to the property which the appellant claims to be in his possession and direct the trial Courts to allow the parties to make additional pleadings, by applying in the usual way, on the question whether respondent 1 had knowledge of the dissolution of the partnership (or the termination of Dayabhai's authority) before the contract of sale was effected and also direct the Court to permit the parties to adduce such evidence as they choose to in support of their respective contentions and to decide the suit in so far as it relates to the rights of the appellant on the one hand and of the respondent on the other. Costs of the appeal shall abide the event. The other costs shall be borne as ordered by the Courts below except those as between the appellant and respondent 1. The latter would follow the event.
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1949 (8) TMI 18 - CALCUTTA HIGH COURT
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... ... ..... which a party could have avoided by the exercise of the care and attention cannot be a sufficient cause. In other words, the Court must be able to say, having regard to the facts and circumstances of the case, that the delay was reasonable . A cause arising from the negligence of the party cannot be a "sufficient cause" within the meaning of Section 5, of the Limitation Act. 19. For these reasons I am doubtful whether sufficient cause has been shown why the application for setting aside the abatement should be admitted after the expiry of the period of limitation prescribed for such application. 20. However, the learned Judge has exercised his discretion under Section 5 of the Limitation Act and the exercise of the discretion should not be lightly interfered with by the Appellate Court. As My Lord is also of opinion that the learned Judge has exercised his discretion properly I do not like to press my doubt to the point of dissent. 21. I agree in the order proposed.
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1949 (8) TMI 17 - CALCUTTA HIGH COURT
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... ... ..... nsion of the profession. A person may be compelled to discontinue his profession owing to his illness or owing to his appointment to some office which complete him to give up his profession. Such cessation of professional activities, even if involuntary, would constitute discontinuance within Section 25(3). Reference may be made to the case of Mr. Justice Iqbal Ahmad 1942 10 I.T.R. 152. The nature of the detention and the impossibility of making any reasonable forecast as to the length of such detention might lead the assessee to think at that time that it was all over with him so far as his profession was concerned. There were other facts which had been found by the Tribunal. Mr. Bose had dismissed his clerk and given up his chambers and on the material before them they were justified in holding that there was discontinuance by Mr. Bose of his profession. I agree with the answer proposed by the learned Chief Justice to the question put to us. Reference answered accordingly.
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1949 (8) TMI 16 - CALCUTTA HIGH COURT
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... ... ..... which a party could have avoided by the exercise of the care and attention cannot be a sufficient cause. In other words, the Court must be able to say, having regard to the tacts and circumstances of the case, that the delay was ressonable. A cause arising from the negligence of the party cannot be a "sufficient cause" within the meaning of Section 5, of the Limitation Act. 19. For these reasons I am doubtful whether sufficient cause has been shown why the application for setting aside the abatement should be admitted after the expiry of the period of limitation prescribed for such application. 20. However, the learned Judge has exercised his discretion under Section 5 of the Limitation Act and the exercise of the discretion should not be lightly interfered with by the Appellate Court. As My Lord is also of opinion that the learned Judge has exercised his discretion properly I do not like to press my doubt to the point of dissent. 21. I agree in the order proposed.
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1949 (8) TMI 15 - MADRAS HIGH COURT
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... ... ..... ther partners. So long as the firm continues, it is not possible for any partner to claim exclusively the benefit of the appreciation of the value of the assets for himself and at the time of the dissolution, such benefit must be shared by all the partners equally. The plaintiff is therefore entitled to have the assets of the partnership properly valued for the purpose of winding-up of the partnership. The assets have to be valued, of course, on the basis of the market value on the data of the dissolution, that is, 5th December 1942. The order of the remand made by the learned Sub-Judge is correct. 3. I am not called upon to decide in this appeal any other question and my judgment should not be taken either expressly or impliedly to have decided any other point except the point stated above. It is for the first Court to determine the assets and their value and other questions that have been raised before it already. The result is the appeal fails and is dismissed with costs.
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1949 (8) TMI 14 - PATNA HIGH COURT
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... ... ..... order which can be said adversely to affect either party to the proceedings. If it had been intended that an application in revision should not be rejected without hearing the party making it, that would have been made clear in the proviso to sub-section (3). It is to be noted that the revisional jurisdiction both of the Commissioner and the Board of Revenue is entirely discretionary and when a discretionary jurisdiction is conferred on a Tribunal, it is impossible to hold that anybody has a vested right to be heard before an order refusing to exercise the discretionary jurisdiction of revision is passed. I would, therefore, answer the first question referred to us in the negative, and the second question in the affirmative. As the petitioner succeeds on the first point and fails on the second, there will be no order for costs. Half the fee of Rs. 100 deposited by the applicant under Section 21(1) will be refunded to him. MEREDITH, J.-I agree. Reference answered accordingly.
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1949 (8) TMI 13 - HIGH COURT OF NAGPUR
Form and contents of balance sheet and profit and loss account and Director – Disclosure of interest by
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1949 (8) TMI 12 - HIGH COURT OF CALCUTTA
Company – Incorporation of ... ... ... ... ..... as no prejudice to the accused. As regards the failure to observe the provisions of section 242 of the Criminal Procedure Code I have already said that this Court has decided that the failure vitiates the entire trial and nothing has been said against this decision by the Judicial Committee. As it is a decision of a Division Bench of this Court I am bound to follow it and no other reason is necessary to be given for holding that the trial is vitiated by reason of the non-observance of the provisions of section 242 of the Criminal Procedure Code. Having regard to what has been said above I hold that the entire trial has been vitiated. The order of conviction and sentence are set aside and the case is sent back for retrial denovo by Sri S.P.Chatterjee Municipal Magistrate, in the light of the observations made above. Mr. Das on behalf of the company undertakes that the company shall appoint a person to represent it at the trial for all purposes as if he were the company itself.
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1949 (8) TMI 11 - HIGH COURT OF MADRAS
Directors – Power of ... ... ... ... ..... iary position in relation to the members of a company, he is not liable to account to them. It seems to us that his liability to account flows from his fiduciary position, which requires him to hold the property of the company over which he has control for the benefit of the members of the company. If he holds the position of a trustee with regard to the members of the company, it means that the members of the company can call upon him to account for the property over which he has control on their behalf. This is expressed in the opening sentence of paragraph 533 of Halsbury s Laws of England, Vol. V mdash Directors are trustees of the property of the company in their hands or under their control and must account to the company for all such property. We are therefore satisfied that the learned District Judge was right in holding that an order for arrest could issue against the appellant even if his allegation that he had no money were true. The appeal is dismissed with costs.
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