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1990 (2) TMI 323
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... ... ..... enquiry should have been made by the ITO and he had does it, it could be said that the action of the ITO was erroneous and prejudicial to the interest of the Revenue. The aforesaid judgment of the Hon'ble Delhi High Court does not, therefore, render any help to the assessee. 14. In Kanda Rice Mills case (supra) the Tribunal found, after scrutinising the order of the Commissioner under section 263 that the Commissioner had not arrived at any firm conclusion as to whether the order of the ITO was correct or not and whether it was prejudicial to the interest of the Revenue or not, and in this setting the Tribunal had observed that when the Commissioner did not express his opinion and came to no conclusions with regard to the erroneous prejudicial nature of the order, he could exercise jurisdiction under section 263. Obviously, the aforesaid ratio has no application to the facts found by us in the present case. 15 In view of the above discussion we reject the present appeal.
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1990 (2) TMI 322
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... ... ..... ng. 3) There is no acceptable reason as to why Ambar Prasad who had promised to give the bribe money on 8.11.79 came even on 5.11.79 with the vigilance party. 4) Though Ambar Prasad agreed to pay Rs. 15/-, he paid only Rs. 10/-. 5) The application said to have been presented by Ambar Prasad is not found. 6) No evidence whatsoever was produced to show that Ambar Prasad required a backward class certificate for getting the scholarship in the month of November. 5. The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar Prasad in expertise of his official function. 6. On going through the impugned judgment of the High Court, we are of the view that the facts and circumstances of this case do not warrant interference. 7. In the result, the appeal is dismissed.
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1990 (2) TMI 321
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... ... ..... sidered as extended, the preliminary issue will have to be decided in favour of the defendants the suit, therefore, must be held to be barred by limitation and, therefore, will have to be dismissed and the same is accordingly dismissed. 21. As the suit is dismissed on the point of limitation, no costs are awarded to the defendants though they ultimately succeed in getting the suit dismissed. Parties to bear their respective costs. 22. The amount of ₹ 60,000 which is deposited as per the order of the court passed in the company petition be refunded to the defendants after a period of four weeks. Whatever has accrued to the said amount of ₹ 60,000 shall also be refunded to the defendants. In case the amount has been deposited in the bank and has not matured for withdrawal, it may be withdrawn before maturity if the defendants so desire. 23. The prothonotary and senior master to act on the record of this case for return of the said deposited amount of ₹ 60,000.
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1990 (2) TMI 320
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... ... ..... tute book the doctrine of advancement which was not prevalent in this country. 36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under Section 3(2) of the said Act. From a bare perusal of Section 4(3) of the said Act, it is evident that even such a case is not protected thereunder. 37. In this view of the matter, in my opinion, it has to be held that the suit filed by the plaintiff in respect of Items Nos. (iii) and (iv) of the Schedule B appended to the plaint was barred under the Provisions of Benami Transaction (Prohibition) Act, 1988. 38. In the result, the appeal is allowed in part and it is declared that the plaintiff-respondent is entitled to partition in respect of 1/2 share only in relation to items Nos. (i) and (ii) properties described in Schedule B of the plaint. However, in the facts and circumstances of the case, there will be no order as to costs.
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1990 (2) TMI 319
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... ... ..... o the quarter occupied by the workman at Dhanbad. As against these material, the workman has not produced any proof in support of his allegation that he has been residing in village home near Patna. In fact, in the counter-affidavit, he has not denied the documents annexed to the Special Leave petition, and not seriously disputed the factum of his residence in the colony quarter at Dhanbad. Even the alleged recommendation of the Ward Commissioner referred in his counter- affidavit has not been produced. We have, therefore, no hesitation in holding that the Government was misled by the representation of the workman. 27. In the result, we allow the appeal and quash the notification dated August 8, 1988 by which the Government of Bihar transferred the case from the Labour Court, Dhanbad to the Labour Court, Patna. The Labour Court, Dhanbad shall now proceed to dispose of the matter as expeditiously as possible. 28. In the circumstances of the case, we make no order as to costs.
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1990 (2) TMI 318
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... ... ..... oncluded by the decision in the assessee's own case in the earlier years reported in CIT vs. Bharat General & Textile Industries Ltd. (1986) 56 CTR (Cal) 237 (1986) 157 ITR 158 (Cal) and in view of the said decision the question referred is answered in the negative and in favour of the Revenue. 6. So far as question No. 4 is concerned this point is now concluded by the decision in the assessee's own case in the earlier years reported in (1986) 157 ITR 158 (Cal) (supra) and in view of the said decision the question referred is answered in the negative and in favour of the Revenue. 7. So far as question No. 5 is concerned this question is now concluded by a decision of this Court in the case of CIT vs. Upper Ganges Sugar Mills Ltd. reported in (1985) 49 CTR (Cal) 28 (1985) 154 ITR 308 (Cal) and in view of the said decision this question of law is answered in the negative and in favour of the Revenue. There will be no order as to costs. SUHAS CHANDRA SEN, J. I agree.
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1990 (2) TMI 317
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... ... ..... may file written statement. It was not stated that they would file the written statement. They never took any other step sub- mitting to the jurisdiction of the court to decide the case on merits. The right to have the dispute settled by arbitration has been conferred by agreement of parties and that right should not be deprived of by technical pleas. The Court must go into the circumstances and intention of the party in the step taken. The Court must examine whether the party has abandoned his right under the agreement. In the light of these principles and looking to the substance of the application dated January 4, 1985, we cannot form an opinion that the defendants have abandoned their right to have the suit stayed and took a step in the suit to file the written statement. In the result the appeal is allowed in setting aside the order of the High Court and restoring the order of the High Court. In the circumstances of the case, we make no order as to costs. Appeal allowed.
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1990 (2) TMI 316
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... ... ..... ticles and he was fined too. In view of these facts, we are not convinced so far as to release the respondent-accused on a fine alone. Such offences are increasing and therefore taking into consideration all the circumstances, we are reluctant to impose only a sentence of fine on the accused. We feel, the ends of justice would meet if the respondent-accused is sentenced to suffer rigorous imprisonment for three months. 44. We, therefore, accept the criminal appeal against the acquittal and set aside the judgment and order of the learned trial Court and convict the respondent-accused for the offence punishable under S. 135of the Customs Act. The respondent-accused is hereby sentenced to suffer rigorous imprisonment for three months. The respondent-accused to surrender to his bail within a period of two months as on the request for Mr. De, the learned counsel for the respondent-accused, two months time has been granted to the respondent-accused to surrender. 45. Appeal allowed.
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1990 (2) TMI 315
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... ... ..... een observed by the Division Bench in J. K. Investment Trust Ltd.'s case 1962 32 C C (All) 7, as follows (at page 895, 896) "It will be noticed that the intention of the Legislature in enacting the sub-section was to arm the court with full powers if it was of opinion that the situation mentioned in sub-section (1) of section 398 had arisen. But the powers so widely conferred could be utilised only to bring to an end the situation which had already continuing in future... it is settled that the liability can be enforced only against a living director and not against his heirs or legal representatives after his death. It is, Therefore, not possible to accept the argument of learned counsel for the applicant that the heirs of the deceased, Sri Hari Shanker Bagla, can be brought on record and proceeded against in these proceeding without having recourse to section 406 or the provisions of this Act." 6. In view of my discussion above, this application is dismissed.
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1990 (2) TMI 314
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... ... ..... rt has power to grant permission for non-lawyers to plead/argue cases in certain special circumstances, the present case is obviously not one such. Under the guise of seeking permission in each case, the petitioner is continuously pleading and arguing every case for the principals who are Dal Mill owners and in a routine fashion, on the sole ground that the principals have decided never to engage any lawyers before any Court or tribunal. The parties are not seeking permission on any special grounds applicable to this case alone. They obviously want to engage the agent in all cases where normally lawyers should have been engaged. That clearly is hit by S. 33 of the Advocates Act. No special grounds warranting grant of permission under S. 32 have been pleaded or urged. The W.P.M.P., is therefore liable to be dismissed and is accordingly dismissed. 17. The principals are however given two months' time to appoint an advocate for. conducting this case. 18. Petition dismissed.
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1990 (2) TMI 313
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... ... ..... the Chemist cannot be found responsible for the offence because as stated above that decision considered the question only from the angle whether he is responsible for the conduct of the business of the company. In view of the fact that sub-section (2) of Section 33 of the Act says that if it is proved that the offence has been committed with the consent on connivance of or attributable to neglect of the part of any officer of the company he is punishable and if it is proved during trial that the Chemist is responsible for the manufacture and misbranding of the product the Chemist can be held guilty. I am therefore unable to agree with the contention of the learned counsel for the petitioners that the proceedings against A-5 Chemist is also liable to be quashed. 5. In the result the proceedings against A-3 and A-4 are quashed and the petition is allowed in so far as they are concerned. The petition is dismissed so far as A-1, A-2 and A-5 are concerned. 6. Order accordingly.
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1990 (2) TMI 312
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... ... ..... been appointed, who has given his report. In view of a view referred to above, the rejection of the surveyor's report by the Insurance Company appears to be based upon misapprehension regarding the words used in item 14 relating to Rules for Construction of Policy of Marine Insurance, the clause in the Insurance Policy with regard to exception of percentage loss of particular average. The report of the surveyor would, when the particular average loss is determined according to the formula mentioned in S. 71(3) of the Marine Insurance Act, result in a determinable sum. 15. In this, view of the matter, the impugned order is set aside. I allow the revision petitions, and remit the matter back to the Commercial Sub Judge to determine the suit in accordance with the observations made herein. 16. The records be sent back, and parties to appear before the Commercial Sub Judge on 14 -3-1990, for taking further steps in the matter. 17. No order as to costs. 18. Petition allowed.
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1990 (2) TMI 311
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... ... ..... nary issue will have to be decided in favour of the defendants. The suit, therefore, must be held to be barred by limitation, and, therefore, will have to be dismissed and the same is accordingly dismissed. 14. As the suit is dismissed on the point of limitation, no costs are awarded to the defendants though they ultimately succeed in getting the suit dismissed. Parties to bear their respective costs. 15. The amount of ₹ 20,000/- which is deposited as per the order of the Court passed in the Company Petition be refunded to the defendants after a period of 4 weeks. Whatever has been accrued to the said amount of ₹ 20,000/- shall also be refunded to the defendants. In case the amount is deposited in Bank and is not matured for being withdrawn, it may be withdrawn before the maturity if the defendants so desire. 16. The Prothonotary and Senior Master to act on the record of this case for return of the said deposited amount of ₹ 20,000/-. 17. Order accordingly.
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1990 (2) TMI 310
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... ... ..... it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, M.C.C. is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the M.C.C. and in the K.P.C. going in for a choice of the better on the merits. The appellant had no doubt also urged that the M.C.C. had no experience in this line of work and that the appellant was much better qualified for the contract. The comparative merits of the appellant vis-a-vis M.C.C. are, however, a matter for the K.P.C. (counselled by the T.C.E.) to decide and not for the Courts. We were, therefore, rightly not called upon to go into this question. For the reasons discussed above, this appeal fails and is dismissed. But we make no order as to costs. Appeal dismissed.
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1990 (2) TMI 309
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... ... ..... t, sue or be sued, on behalf of all of them. The rule has created a doubt as to whether the party representing others should have the same cause of action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that such persons need not have the same cause of action." There is, therefore, no doubt that the persons who may be represented in a suit under Order 1, Rule 8 need not have the same cause of action. The trial court in the present case was right in permitting the respondent to sue on behalf of all the allottees of Ashok Nagar. We, therefore, do not find any merit in this appeal which is dismissed with costs. Before closing, however, we would like to point out that the plaintiff has represented only those in the low income group in Ashok Nagar who will be governed by this judgment, and nothing what has been said or decided in this case is applicable to any other group or colony. Appeal dismissed.
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1990 (2) TMI 308
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... ... ..... ssion. The legislature did not do more than what it did. It has, in our view, accomplished what it had set out to achieve. No more no less. In the circumstances, we hold that the correct construction of Rule 92(2) of Order XXI of the Civil Procedure Code, 1908 leads to the irresistible conclusion that the time for making a deposit in terms of Rule 89 of Order XXI is 30 days, and Article 127 of the Limitation Act, 1963 prescribing the period for making an application under Rule 89 has no relevance to the prescribed time for making the deposit. Neither provision has any effect on the other as to time. All decisions the contrary on the point, we hold, are incorrect. With the greatest respect, we disagree with the contrary view expressed in Basavantappa v. Gangadhar Narayan Dharwadkar & Anr., 1986 4 SCC 273. On the question of limitation the judgment of the High Court is set aside, and the appeal is allowed to that extent. We make no order as to costs. R.N.J. Appeal allowed.
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1990 (2) TMI 307
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... ... ..... Instruction No. 7 and 9(e) of the instructions contained in G.O.Ms. No. 728 G.A.D. dated November 1, 1975. But, as stated earlier, it is only for the purpose of administrative convenience, not for the purpose of recruitment, seniority or promotion etc., as the case may be. Thus, we have no hesitation to hold that the creation of a division and maintaining separate seniority of Junior Assistants and Senior Assistants for Adilabad and Warangal Divisions are illegal, contrary to order issued in G.O.Ms. No. 581 and the Andhra Pradesh Employment (Organisation of Local Cadre and Regulation of Direct Recruitment) Order, 1975. The single member of the Tribunal in R.P. No. 101/82 dated April 1, 1982 did not consider the effect of the order in proper perspective and is illegal. 12. Accordingly, the impugned order of the Administrative Tribunal is not vitiated by any manifest error of law warranting interference. The appeal is accordingly dismissed, but without costs. Appeal dismissed
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1990 (2) TMI 306
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... ... ..... separate cadres and the subordinate cadre in some cases is the feeder cadre for promotion to the post in the Head Office. In this view, by no stretch of imagination, the appellants can be considered to be equally placed for treating them at par with the Directorate employees for being treated as being in a common cadre. There is reasonable nexus to differentiate the two cadres. Therefore, the classification cannot be said to be arbitrary violating Articles 14 and 16 of the Constitution. 6. It is not necessary to burden the judgment with the decisions cited by either counsel as they are not directly or nearer to the core in the case. Accordingly we hold that the appellants are not entitled to be treated at par with the employees working in the respective Directorates for giving direction to the respondents to maintain common seniority between the employees of the Directorate and Subordinate Offices. The appeals are accordingly dismissed, but without costs. Appeals dismissed.
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1990 (2) TMI 305
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... ... ..... to the quarter occupied by the workman at Dhanbad. As against these material, the workman has not produced any proof in support of his allegation that he has been residing in a village home near Patna. In fact, in the counteraffidavit, he has not denied the documents annexed to the Special Leave Petition, and not seriously disputed the factum of his residence in the colony quarter at Dhanbad. Even the alleged recommendation of the Ward Commissioner referred in his counter-affidavit has not been produced. We have, therefore, no hesitation in holding that the Government was misled by the representation of the workman. In the result, we allow the appeal and quash the notification dated August 8, 1988 by which the Government of Bihar transferred the case from the Labour Court, Dhanbad to the Labour Court, Patna. The Labour Court, Dhanbad shall now proceed to dispose of the matter as expeditiously as possible. In the ’circumstances of the case, we make no order as to costs.
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1990 (2) TMI 304
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... ... ..... poses for which the proviso was enacted, we are of the opinion that the obligation to tender the rent under the proviso on the first hearing date does not depend upon the existence of admitted jural relationship of landlord and tenant. When an action for eviction is brought by the landlord on the ground of default, the proviso stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant. The view to the contrary ex- pressed by the High Court of Punjab and Haryana in Ram Gopal and Onkar Mal cases is likely to be of greater mischief to the tenants than a protection for them and is therefore overruled. In the result, the appeal is allowed, the judgment of the appellate authority as affirmed by the High Court is reversed. The matter stands remitted to the appellate au- thority for disposal in the light of the observations made and in accordance with law. In the circumstances of the case, we make no order as to costs.
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