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Showing 1 to 20 of 278 Records
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1987 (4) TMI 501
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... ... ..... l order, is through the forum prescribed for redressal thereof under that Code itself or under enabling provisions meant for the same under Articles 132 to 136 of the Constitution of India. To conceive of thrashing the issues involved in a judicial order through writ is not tenable on the basis of the jurisprudence followed by settled precedents of the highest Court of the land which my lord has elaborately discussed in the paragraph dealing with the question no. 4. 43. Other questions including that of an order of remand of an accused have also been correctly answered with which I am in full agreement on the basis of the golden rule of interpretation, which prohibits enunciation of any law that would create an impossibility in its applicability to different situation arising out of individual set of facts in different cases. With the above observations, I once more reiterate my full agreement with the judgment given by my lord the Chief Justice, RAM NANDAN PRASAD, J I agree.
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1987 (4) TMI 500
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... ... ..... the matter has not been duly examined by Mukharji, J. when he made his finding against the appellant. 44. This is how this Court understood how a plea of estoppel based on negligence can be successfully put forward. We have seen that there is no duty for a customer to inform the bank of fraud committed on him, of which he was unaware. Nor can inaction for a reasonably long time in not discovering fraud or irregularity be made a defence to defeat a customer in an action for loss. Thus the contentions put forward by the bank cannot be accepted to defeat the plaintiff. The various submissions made by the Counsel for the bank based on constructive notice in the general law and on other branches of law cannot be extended to relationship between a bank and its customer. 45. On a careful analysis of the question of law, we hold that the judgment the High Court and that of the Trial Judge have to be upheld. We do so. We accordingly dismiss the appeal with costs of the 1st respondent.
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1987 (4) TMI 499
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... ... ..... 7. Having regard to the facts and circumstances of this case we are of the opinion that the learned judge committed serious error in recalling his order dated June 3, 1986 and enlarging the respondent on bail. The occurrence took place, in the broad day light, in a busy market place and there are a number of eye witnesses to support the case against the respondent who was named as an assailant in the First Information Report. Immediately after the occurrence he could not be traced (it was alleged that he had absconded) for more than a month, attempts were made on his behalf to tamper with evidence. In view of these facts and circumstances the respondent No. 1 was not entitled to bail if the seriousness of the matter was realised and a judicious approach was made. We had accordingly set aside the order of the High Court and directed that respondent No. 1, Ishtiaq Hasan Khan shall be taken into custody forthwith and the trial shall proceed in accordance with law expeditiously.
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1987 (4) TMI 498
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... ... ..... the respondent has submitted that claim for 'process for generation of power from solid carbonised fuels' was refused but this rejection could as well be a bad Civil Court so far as district of Greater Bombay is concerned. Issue answered accordingly. 33. After recording his findings in the affirmative on first two preliminary issues the learned single Judge held that for want of statutory notice under Section 164 of the Co-operative Societies Act, the plaintiff's suit is liable to be dismissed with costs. As indicated above, we are in complete agreement with the findings of the learned single Judge on both these issues. The learned single Judge in effect has dismissed the plaintiffs suit with costs. 34. In the result the appeal fails and the same is dismissed. Consequently the plaintiff's suit also stands dismissed for the reasons indicated above. In the circumstances of the case parties are directed to bear their own costs of this appeal and that in the suit.
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1987 (4) TMI 497
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... ... ..... his Court. If that is so this Court has jurisdiction to entertain these petitions, notwithstanding the Institute and the Panel have their offices at Delhi." (Para 18) This decision does not throw any light on the matter in controversy, because in Karnataka case, the nominations were sent from Bangalore and orders rejecting them were despatched to Bangalore, but in the present case, it appears that the petitioner applied for the post from Indore and received the impugned order of appointment at Indore. The decision, therefore, does not require any further discussion. The upshot of the aforesaid discussion is that the decision of this Court in Kanti Prasad (supra) deserves to be overruled and is hereby overruled, Accordingly the objection about maintainability of the petition before this Bench of the High Court fails and is rejected. The record of the case shall now be placed before the regular Division Bench for the purpose of further hearing on admission of the petition.
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1987 (4) TMI 496
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... ... ..... d has no right to participate in that examination. But his examination in the subsequent trial is for the evidence in the case. Necessarily and naturally the accused has a right to cross-examine him at that stage because without cross-examining and challenging his veracity the evidence cannot be used against the accused. The reference is therefore answered as below (1) In spite of the fact that the approver was examined at that time of tendering the pardon during investigation he will have to be examined again before the Magistrate under Section 306(4) before committal. (2) Recording of confession will not debar the Chief Judicial Magistrate from examining the approver under Section 306(4) or from committing the case. (3) The Chief Judicial Magistrate need not make over the case to any other Magistrate for examining the approver. (4) In the examination of the approver before the Magistrate under Section 306(4) there is no question of allowing the accused to cross-examine him.
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1987 (4) TMI 495
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... ... ..... by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. 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 it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. 7. Tested in the light of the above principles, it must be held that the interference made in the present case by the High Court with the order of acquittal passed by the learned Sessions Judge was wholly unwarranted. We accordingly, allow this appeal, set aside the judgment of the High Court and restore the judgment and order of the learned Sessions Judge acquitting the appellants of all the charges framed against them.
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1987 (4) TMI 494
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... ... ..... a recommendation or to grant a certificate as the net effect of the aforesaid Government Order dated 30th September, 1982 is that the Sales Tax Officer had no option but to act in accordance with the recommendation of the Joint Director. He could not review the same or examine the whole thing afresh. The result, therefore, is that the impugned order passed by the Sales Tax Officer is clearly without jurisdiction and must be set aside. 6. In the result the petition succeeds and is allowed. The impugned order dated 5th September, 1985, passed by the Sales Tax Officer, Deoband Mandal (Saharanpur) is quashed. The Sales Tax Officer is restrained from making any assessment in respect of the petitioner's concern for the period during which the eligibility certificate was to be operative. 7. We may, however, add that if any authority has since been authorised to review the eligibility certificate granted to an applicant this order shall not come in the way of Reviewing Authority.
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1987 (4) TMI 493
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... ... ..... udgments under appeal. We also approve of the decisions of the High Courts of Madras and Delhi cited above wherein the view has been taken that the benefit of Section 428 of the CrPC cannot be claimed by persons tried and sentenced by the Court-Martial. 15. The decision in Subramanian v. Officer Commanding Armoured Static Workshop (supra) rendered by a learned Single Judge of the High Court of Kerala does not contain any discussion of the relevant provisions of the two concerned statutes and what little reasoning is found in the judgment does not appeal to us as correct or sound. The Division Bench of the Calcutta High Court in its decision in Anand Singh Bishit v. Union of India and Ors. (supra) has merely followed the aforesaid ruling of the Single Judge of the High Court of Kerala. We hold that these two decisions do not lay down the correct law. 16. It follows from the foregoing discussion that these appeals are devoid of merits and they will accordingly stand dismissed.
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1987 (4) TMI 492
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... ... ..... property. The petitioners also filed an execution application against the respondent for execution of the said decree by committing the respondent to civil prison. The respondent No. 1 filed a revision application being Civil Revision Application No. 1472 of 1979 against the order of the Court of District Munsiff, Gajapatinagaram dated 17.2.1979 passed in Execution Application No. 45 of 1978 filed by the petitioners. 6. From this it is evident that the decree-holder had proceeded against the mortgaged property and also against the principal debtor. If this is correct, execution against the guarantor was maintainable. In view of this disclosure, we remand the matter to the High Court giving opportunity to the appellant to plead this case before the High Court and seek execution of the decree against the respondent with liberty to the respondent to dispute the correctness of this statement. The High Court will dispose of the matter in accordance with law. No order as to costs.
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1987 (4) TMI 491
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... ... ..... element of arbitrariness is certainly introduced. This must necessarily be avoided if Arts. 14 and 16 have to be given any meaning. We, therefore, consider that insistence of recruitment through employment exchanges advances rather than restricts the rights guaran- teed by Arts. 14 and 16 of the Constitution. The submission that employment exchanges do not reach every-where applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily Press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in Government Departments should be through the medium of employment exchanges does not offend Arts. 14 and 16 of the Constitution. With this modification of the judgment of the High Court, the appeals and the special leave petitions are disposed of. No orders are necessary in the writ petition. Appeals disposed of.
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1987 (4) TMI 490
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... ... ..... fact the petitioners have applied under section 25-O of the Industrial Disputes Act and that application stood rejected not once but twice and it is only thereafter that they have filed this winding-up petition. In view of the fact that no permission under section 25-O has been obtained by the petitioners and the provisions of the Industrial Disputes Act to prevail over the Companies Act, the company cannot be allowed to be wound up. For this reason also, the petition will have to be dismissed. 54. One further point which has been taken up by Mr. Ganguli is that the provisions of the Companies Act relating to winding-up of a company are contrary to articles 21,39A and 41 of the Constitution of India in so far as the workers have a right to livelihood as guaranteed under these articles. I do not propose to deal with this argument as, in this particular case, there is no necessity for dealing with the same. 55. Under the circumstances, the petition stands dismissed with costs.
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1987 (4) TMI 489
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... ... ..... er such immediate suspension was necessary by reason of the gross misconduct of the Petitioner as required by sub-section (5) of Section 8. We refrain from expressing any opinion as to the seriousness or otherwise of the charge as that is a matter to be enquired into by a departmental proceeding. The fact however remains that there was no response from the Director within the period of 15 days as envisaged by the second proviso to Section 8(4). As a result of this, the impugned order of suspension has lapsed and it is so declared. Although the impugned order of suspension has lapsed, the management may yet move the Director for his prior approval under Sub-section (4) of Section 8 of the Delhi School Education Act, 1973, and the Director shall deal with such application, if made, in accordance with the principles laid down in Frank Anthony Public School's case. 14. Subject to this observation, the writ petition fails and is dismissed. There shall be no order as to costs.
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1987 (4) TMI 488
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... ... ..... ng within the purview of I, proviso to sub-s. (1) of S. 34 of C.P.C. 18. The cases cited at the Bar have no bearing on the issue with which we are concerned in the present case, since the provisions of the Interest Act in the present form did not come up for consideration. So there is no need to refer to those cases. 19. Further, in view of our conclusion that the defendant is liable to pay interest Linder the Interest Act, 1978, we are of the opinion that it is unnecessary to determine his liability under the Trusts Act. 20. For the reasons stated above, this appeal is partly allowed, and the decree of the trial Court is modified directing the defendant to pay interest on ₹ 1,00,000/- at the rate of 9 per cent per annum from 21-61980 till the date of filing of the suit and also to pay interest at the rate of 6 per cent per annum from the date of suit till the date of realisation. In the circumstances of the case, parties to bear their own costs. 21. Order accordingly.
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1987 (4) TMI 487
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... ... ..... g what one must regard ......... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract." Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House. of Lords in Suissee Atlantigue Societed’ Armement Maritime S.A.v.N.V. Rotterdamsche Kolen Centrale, 1967 1 A.C. 361 at 393,412- 413,427-428, 430. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract." (Exphasis added). In our opinion, therefore, the High Courts of Gujarat and Andhra Pradesh are right and the High Courts of Orissa, Patna and Madhya Pradesh are in error. The exclusion clause does not exonerate the Insurer. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.
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1987 (4) TMI 486
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... ... ..... igh Court failed to apreciate that the power to grant a licence for the holding of a hat or fair under s. 117 of the Act necessarily carries with it the power to specify a day on which such hat or fair shall be held. Such power to specify a day must be held to be a power incidental to or consequential upon the principal power of issuing a licence under s. 117 of the Act for holding of a hat or fair. The rules or the absence of it do not detract from the substantive power conferred by a statute. The essence and content of the power of a Panchayat Samiti under s. 117 of the Act is issuance of a licence for the holding of a hat or fair and not mere maintenance of sanitation, health and hygiene as held by the High Court. For these reasons, we have no hesitation in reversing the judgment of the High Court. The appeal must accordingly succeed and is allowed. The judgment and order passed by the High Court are set aside and the writ petition is dismissed. No. costs. Appeal allowed.
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1987 (4) TMI 485
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... ... ..... High Court and dismiss the writ petition. However, it was represented by learned counsel for the respondent that it is difficult to find a duly qualified person to come and serve as Manager of a mine in rural areas and we should call upon the appellant to find a suitable person for appointment as Manager. Learned counsel for the appellant was however gracious enough to suggest that the Department will find a qualified person and depute him 26 work as Manager, and the respondents shall be liable to pay his salary and allowances as may be stipulated by the Joint Director of Mines Safety. The Joint Director will select and depute a proper person to serve as Manager of the respondents' mine within thirty days from the receipt of this order. In view of this, the appellant will consider the feasibility of not launching a prosecution against the respondents for their past failure to appoint a duly qualified Manager as required under s. 17 of the Mines Act, 1952. Appeal allowed.
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1987 (4) TMI 484
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... ... ..... to s. 30 of the Advocates Act, 1961 and s. 14 of the Indian Bar Councils Act. It was said that the State Legislature was not competent to make a law repugnant to laws made by Parliament pursuant to Entries 77 and 78 of List 1 of the 7th Schedule of the Constitution. The submission of the learned counsel is fully supported by the judgment of a Full Bench of High Court of Punjab and Haryana in Jaswant Kaur v. State of Haryana, AIR 1977 Punjab & Haryana 22 1. We adopt the reasoning of the High Court of Punjab & Haryana and direct that s. 48(8) will not be enforced so as to prevent Advocates from appearing before the Tribunals functioning under the Act. In regard to the decisions already rendered by the Tribunals we do not think that it is necessary to reopen them on the ground that legal practitioners were not allowed to appear before the Tribunals in those cases. All the civil appeals are, therefore, dismissed,' in the circumstances without cost. Appeals dismissed.
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1987 (4) TMI 483
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... ... ..... he debt itself arises or becomes due and payable by the debtor only on the respective dates fixed for the instalments the stipulation that on default being made in the payment of any instalment the whole of the balance should become due and payable would be in the nature of a penalty." We agree with the law so laid down by the full Bench. The result is that the appeal has to be allowed. Accordingly, we set aside the Judgment of the High Court and allow this appeal but in the circumstances of the case, without costs. Special leave granted in S.L.P. (Civil) 2908/75. Here the Judgment of the High Court is challenged by a subscriber putting forth the arguments that found favour with the Division Bench in the earlier appeal. We adopt the reasoning of the full Bench in 1974 KLT 806, which was followed by the Division Bench in the Judgment under appeal in this case. The appeal, therefore, has to fail and is dismissed. However, with no order as to costs. P.S.S. Appeal dismissed
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1987 (4) TMI 482
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... ... ..... sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent. For the reasons aforesaid, this appeal is dismissed. There will, however, be no order as to costs.
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