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Showing 1 to 16 of 16 Records
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1952 (7) TMI 22 - BOMBAY HIGH COURT
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... ... ..... tiffs in that case were equitably entitled to the money as the profits of the lands, which one of the owners of the lands withdrew honestly believing that he was-entitled to it, and therefore according to the learned Judges the claim was an equitable claim against the defendants. In my opinion here too, although defendant No. 1 did not receive the money for the use of the plaintiff and defendant No. 2 and although the State of Sangli did not pay the money to defendant No. 1 for the use of the plaintiff and defendant No. 2, as soon as the plaintiff establishes that he has a share in equity he has a claim to it, and if it is an equitable claim and not a contractual claim, then the article that would apply is Article 120 and not Article 62. On the whole, in my opinion, the learned Judge below was right in the view that he took that Article 120 applied and that the suit was within time. (5) The result is that the application fails. Rule discharged with costs. (6) Rule discharged.
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1952 (7) TMI 21 - HIGH COURT OF KERALA
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... ... ..... sal. The interim award which is assailed in this case, as already stated, was passed on 27-12-1951. After this original petition was presented in this Court, an order of stay was obtained and papers were called for. The result was that case No. 13 of 1951 before the tribunal could not be proceeded with and is still pending. If the petitioner is to be directed to prefer an appeal to the appellate authority, then the result would be, that the proceedings might have to be stayed until the result of that appeal whose period of pendency nobody can predict. In view of the fact that this Court has jurisdiction, it appears to me proper to exercise the discretion vested in this Court to quash the proceedings which are bad on their face and not to direct the party to pursue another remedy, assuming any other is available. 12. The result is that the interim award passed by the tribunal on 27-12-1951 is quashed. The original petition is allowed with costs; advocate's fee ₹ 200.
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1952 (7) TMI 20 - BOMBAY HIGH COURT
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... ... ..... laimed, in their amended plaint which they put on file on July 15, 1948, to recover the excess over this sum of ₹ 18,776-6-0, the plaintiffs' claim could not be sustained. The rest of the judgment is not material to the report. 2. The appeal filed by the defendants will, therefore, be allowed in part. The decree passed by the Court below will be confirmed with this variation, that there will be a decree in favour of the plaintiffs for the sum of ₹ 11,605-1-0 instead of the sum of ₹ 24,549-15-0, with interest on that sum at the rate of 6 per cent, per annum from July 2, 1947, till today, costs and interest on judgment at the rate of 4 per cent, per annum till payment The plaintiffs and the defendants will be entitled to their proportionate costs here as well as in the Court below, in proportion to their success or failure. The plaintiffs' cross-objections will, of coarse, be dismissed with costs. 3. Appeal allowed in part; cross-objections dismissed.
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1952 (7) TMI 19 - CALCUTTA HIGH COURT
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... ... ..... ated under Order 22, Rule 4, Sub-rule (3) arises. It must follow that the second application made toy the petitioners was misconceived and relief can be given to them on the first application. I accordingly hold that an application for substitution, if made on 14-7-1952, would be within time and since such an application was annexed to the application for setting aside an abatement, which was the application in fact made, we can make suitable orders on the actual state of facts disclosed. 11. I accordingly allow the application made on 14-7-1952, in terms of prayers (1), (3) and (4). 12. As I have already stated, the notice of motion was taken out in respect of the application for setting aside the abatement and it was that notice which the respondent came to meet. In those circumstances I think that the respondents are entitled to their costs of this application irrespective of the result of the appeal. 13. There will be an order accordingly. S.R. Das Gupta, J. 14. I agree.
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1952 (7) TMI 18 - BOMBAY HIGH COURT
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... ... ..... urisdiction of the Court, because under Section 10 whatever order is passed affects the jurisdiction of the Court. It is a mandatory provision and the suit cannot go on if it is stayed and therefore the decision under Section 10 must affect the jurisdiction of the Court one way or the other, and every decision which deals with the jurisdiction of the Court is a decision which affects the rights of parties. This is the principle on which the Bombay' decision is based and we do not feel that there is anything so seriously wrong with that reasoning as would justify our reconsidering that decision in a properly constituted bench. (8) The result, therefore, is that we allow the appeal, set aside the order of the learned Judge below, and order that the Bombay suit should be stayed under Section 10 until the hearing and final disposal of the Calcutta suit. Appeal allowed with costs. Appellants also to get the costs of the notice of motion in the Court below. (9) Appeal allowed.
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1952 (7) TMI 17 - HIGH COURT OF MADRAS
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... ... ..... e applied in its entirety to such proceedings, including power of appeal and of review. This contention however does not really arise in this case because Section 141, Civil P. C., is indicative of general enunciation of the principle by the Legislature that to all judicial proceedings the Code of Civil Procedure is applicable and I have pointed but how the Judicial Committee of the Privy Council has held that this arises only where the proceedings reach the court appealed to as one of the ordinary courts of the country with regard to whose procedure, orders and decrees the rules of the Code of Civil Procedure are applicable, and which is not the case in so far as this special enactment is concerned as was found to be the case with regard to the Madras Hindu Religious Endowments Act in -' Anantharaju Shetty v. Appu Hegade', 37 MLJ 162. ( 10. ) Therefore , this application for review does not lie and consequently it is dismissed and in the circumstances without costs.
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1952 (7) TMI 16 - ORISSA HIGH COURT
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... ... ..... are satisfied that the question referred to us must therefore be answered as follows - "On the facts and in the circumstances of the case the Tribunal erred in confirming the additions of ₹ 10,291 and ₹ 10,000 in the assessments for the years 1944-45 and 1943-46 respectively." It has been faintly suggested before us that whether or not there was material to show any business income from the undisclosed past capital, during the accounting year, it could reasonably be assumed that the past capital earned at least interest and that the income by way of interest could be added on to the assessments for these years. The assessment orders do not show that the estimate was made on any such footing and we are not called upon to answer the reference on any such hypothetical basis. The reference is answered as above and the assessee will have the costs of this reference which we fix at five gold mohurs. MOHAPATRA, J.―I agree. Reference answered accordingly.
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1952 (7) TMI 15 - TRAVANCORE-COCHIN HIGH COURT
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... ... ..... f ascertaining the real profits earned during the year. 12. The answer to question (1)(b) follows and it is that the method of valuation of the stock adopted by the assessee company is correct on the facts and circumstances of this case. 13. The answer to question (2)(a) is obvious and it is that it is not open to the Tribunal to disregard the statement in the Appellate Assistant Commissioner's order. Reference may be made to T.V. Krishna Iyer v. C.S. Lakshmanan Pillai 1952 7 D.L.R. (Travancore-Cochin) 201. 14. The answer to question (2)(b) and (2)(c) is in the negative and the answer to question (2)(d) is in the affirmative. Questions numbered as (2) and sub-divisions offer no difficulty and deserve no discussion. 15. In view of the fact that the main question referred for decision which is question No. (1) was res integra the parties are directed to pay themselves their respective costs of this reference. JOSEPH VITHAYATHIL, J.--I agree. Reference answered accordingly.
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1952 (7) TMI 14 - HIGH COURT OF MADRAS
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... ... ..... placed and certainly there can be no restriction to the examination of a court witness as Is now sought to be made out. 6. In this connection, we can usefully remember an extract from Burke in the Trial of Warren Hastings, "A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth." Lumpkin J. in - 'Epps v. State (U.S.A.)', observed, "Counsel seek only for their clients' success; but the Judge must watch that justice triumphs." The learned Stationary Sub-Magistrate of Kulitalai, therefore, has to be congratulated for discharging his duty, viz. examining a witness whom he considered as essential for finding out the truth in the case and not having taken an abbreviated view of his own functions and left in doubt masters in dispute which ought to be resolved in the paramount interests of justice. 7. The petitions are dismissed.
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1952 (7) TMI 13 - ASSAM HIGH COURT
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... ... ..... nt of taxes to the poorer class of people who might convert a piece of six yards of hand-woven mill yarn cloth to some personal use. The assessee in the present case is a big dealer in cloth and his dealings, particularly those that have been taxed relate evidently to big quantities of hand-woven mill yarn made cloth sold to retailers in thans (long pieces) which the legislature never meant to exempt from assessment of sales tax. The defects lay in the wordings of column 2 in Item No. 16, the word piece not being qualified with any attributes like cut or made . In view, however, of the fact, that the clause in the right-hand column presents some ambiguity in the matter of its interpretation and the sales tax on the variety of cloth described in item No. 16 has now been altogether abolished, as we have been given to understand, I agree that the clause may be interpreted to the-advantage of the assessee for the assessment under reference. Reference answered in the affirmative.
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1952 (7) TMI 12 - ASSAM HIGH COURT
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... ... ..... e cases there was reservation of the right of disposal and, therefore, it was held that the property in the goods had not passed to the consignees by the mere fact of delivery of the consignments to the carriers. In this case there is no finding from the Commissioner that the right over the disposal of the goods was reserved before despatch. In fact that contention could not have been raised in view of the position taken up by the assessees, their case being that the presses were benami transferees. In any case there being no such finding the decision of this Court in Ramniwas Satyanarayanan v. Commissioner of Taxes, Assam(1), has got no bearing on the case before us. That case is clearly distinguishable. (1) 1953 4 S.T.C. 61. In the result our answer to the question referred to us is that the turnover from the jute despatched to the presses as consignees is taxable under the Assam Sales Tax Act. We make no order as to costs. DEKA, J.-I agree. Reference answered accordingly.
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1952 (7) TMI 11 - MADRAS HIGH COURT
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... ... ..... t of a citizen preserved under Section 176 of the Government of India Act, 1935, cannot be abrogated by a Provincial enactment. Accused s right not to be taxed was guaranteed by the Division Bench ruling in Provincial Government v. Veerabhadrappa(1), and conviction based on Pasha Saheb v. King(3) must land the Government in a civil suit for refund of taxes thus collected and damages as well. I am unable to deduce from these observations any ground for holding that the assessment cannot be levied. In the result, it has been shown that the order of acquittal is thoroughly incorrect and cannot be supported. It is hereby set aside and the accused is convicted as charged and he is sentenced to pay a fine of Rs. 50. In addition he is directed to pay the sales tax due from him, viz., Rs. 563-10-11 and it is directed to be recovered from him as a fine. Acquittal set aside. (1) 1950 1 M.L.J. 564 1 S.T.C. 245. (3) 1950 M.W.N. 57 (Crl.) 1 S.T.C. 240. (2) 1952 1 M.L.J. 494 3 S.T.C. 121.
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1952 (7) TMI 10 - HYDERABAD, HIGH COURT
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... ... ..... to the Essential Supplies (Temporary Powers) Act as being that law. But he was not able to show that either ready-made garments or cloth as such was included within the purview of that Act. On the other hand, counsel for the respondent has brought to our notice that there is a Bill before the Parliament to declare, in pur- suance of clause (3) of Article 286 of the Constitution, certain goods to be essential for the life of the community but that Bill, which has been pending since June, 1951, has yet to be enacted as a law. Be that as it may, no law in force has been brought to our notice from which we can say that ready-made garments have been declared to be articles essential for the life of the community, and consequently the contention of the Advocate for the petitioner based upon Article 286 of the Constitution also fails. In the result, as the petitioner has not made out a case for the issue of a writ of certiorari, his application is dismissed. Application dismissed.
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1952 (7) TMI 9 - THE NAGPUR HIGH COURT
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... ... ..... view, merit consideration on account of the wording of the entry itself. There is thus nothing from which we could infer any intention on the part of the Legislature to repeal the Act of 1938 but on the contrary, it is beyond doubt that the Legisla- ture intended to keep that Act alive. The Legislature has done all that is necessary to effectuate that intention. It is therefore unnecessary to con- sider the authorities cited by the learned counsel to show that a statute can be repealed by implication. We are satisfied that the petitioner is liable to pay the tax as found due under the Act of 1938 but is entitled to be given credit in respect of the tax paid by him under the Sales Tax Act. The Advocate-General having assured us that he will be given such credit we dismiss the petition. We however make no order as to costs as in the demand made against the petitioner credit was not offered to be given in respect of the sales tax already recovered from him. Petition dismissed.
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1952 (7) TMI 8 - ORISSA HIGH COURT
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... ... ..... 1952 3 S.T.C. 185 (191) (1952) A.L.J. 332 (335). (2) (1833) 5 B. and Ad. 313 at 340. within the State of Orissa. As such, the basis of assessment by him was the letter of the Collector on the theory that mere export is sufficient to make a transaction taxable. The finding of the Commis- sioner that the goods were collected in Orissa and were despatched from Orissa. Normally, therefore, it is reasonable to presume that the sales were completed in Orissa , is too long a presumption, there being no material that the sales were actually completed in Orissa. We would, therefore, require the Commissioner, Northern Division, Sambalpur, to state a case and refer it to this Court on the following point Whether in the circumstances of the case the assessment is legal being based on the position that mere contract for sale within the State of Orissa and the export of goods from Orissa is sufficient for taxation under the Orissa Sales Tax Act, 1947. DAS, C.J.-I agree. Petition allowed.
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1952 (7) TMI 7 - HIGH COURT OF PUNJAB
Winding up – Overriding preferential payments ... ... ... ... ..... at page 104 and on Pekham v. Taylor (31 Bea. 2S0 and on 4 Eq. 34) but I do not think any one of these cases or the principles laid down therein would apply to the facts of this case. Whether it was trust money or not the fact remains that on 7th April, 1949, the object for which this money had been deposited, i.e., as earnest money for a tender for supply of material, had been achieved and therefore the case would fall under section 77 (a) of the Trusts Act the relevant provision of which is 77 (a). A trust is extinguished when its purpose is completely fulfilled. In this case the purpose had been fulfilled and therefore at the time when the bank went into liquidation on 1st May, 1949, there was no longer any existing trust. I am therefore of the opinion that the petitioners are not preferential creditors and this appeal must therefore be dismissed and the judgment of the learned Judge affirmed, but there will be no order as to costs in this court. Falshaw, J. mdash I agree.
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