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1993 (10) TMI 375
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... ... ..... aring on behalf of a party, if during the course of trial subsequently realises that he is likely to be called as a witness, then he can come as a witness by retiring from the case, however, that is not the case in the present matter. 20. In view of this, the decision of the trial Court dated 12th October, 1993 is set aside. The application filed by the respondent-original defendants dated 7-10-1993 is rejected. 21. I am told that in the suit examination of Shri Vaishnav is over and part of the cross-examination is also over. The same be expunged from the record as no evidence. 22. The revision is allowed. Rule made absolute. 23. Shri Pungalia, learned Counsel for the respondents, prays for time to approach the Supreme Court. Heard both the sides. Further proceedings in Long Cause Suit No. 1929 of 1992 pending before the Judge, City Civil Court, Bombay, is stayed for three weeks from today in order to enable the respondents to approach the Supreme Court. 24. Revision allowed.
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1993 (10) TMI 374
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... ... ..... only then it will be a place of amusement. Similarly, regarding the place of public entertainment there should be a provision to admit the public, where food or drink is supplied for consumption. A Club is a place to which only its members are permitted to engage in any diversion or recreational activities etc. The members of the public are not entitled to demand any entrance either freely or on payment of any sum. The entry to the Club is restricted by the terms of the bye-laws and it is a well-known fact that it is always restricted to its members. Therefore, such an Association as that of the petitioner, cannot be compelled to obtain a licence under the Licensing Order. Consequently, respondents are directed not to interfere with the lawful activities of the petitioner-Association. However, it is open to the police to verify and find out the nature of the activities, so that the Club premises may not be used for any illegal activities. Writ Petition is allowed accordingly.
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1993 (10) TMI 373
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... ... ..... used to exercise its jurisdiction by not condoning the delay in preferring the main revisional application on irrelevant consideration and by applying wrong principles. In that view of the matter, the aforesaid binding ruling of the Supreme Court in the case of Mohd. Yunus (supra) will not be applicable and is distinguishable on its own facts. 15. In view of my aforesaid discussion, I am of the opinion that the decision at Annexure C to this petition cannot be sustained in law. It has to be quashed and set aside. 16. In the result, this petition is accepted. The impugned decision rendered by the Gujarat Revenue Tribunal at Ahmedabad on 13th June 1986 in Revision Application No. TEN.B.A. 101 of 1984 is quashed and set aside. The matter is remanded to the Gujarat Revenue Tribunal at Ahmedabad for restoration of the main revisional application to file and its decision on merits according to law. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.
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1993 (10) TMI 372
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... ... ..... any offence committed by a company is proved to have been committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company then the said director, manager, secretary or officer shall also be deemed to be guilty of that offence. It would mean that even if such director, manager, secretary, etc., was not in charge of and was not responsible to the company for the conduct of the business of the company, he will still be liable if the offence was committed with his consent, connivance or due to his negligence. No such averments are required to be made in the complaint against the persons who were in charge of the business of the company. The allegations as contained in the complaint prima facie made out a case against the petitioners and they were rightly summoned by the trial court to stand trial. 10. For the reasons recorded above, I find no merit in this petition and dismiss the same.
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1993 (10) TMI 371
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... ... ..... f the family earn their livelihood by agriculture, the individual debtor would not be entitled to the benefits of the Act even though he would be earning his livelihood primarily from agriculture. It is on this analysis that the High Court went on to decide in favour of the judgment-debtor. Even though learned counsel for the appellant is at pains to persuade us to give a literal and a strict meaning of the expressions employed in Section 3, we are unable to demolish the reasoning of the High Court whereby relief was granted to the judgment-debtor-respondent to further the purposes of the Act. Rather we agree with the views of the High Court. Additionally, this being a local statute some room must be left with the High Court relating to its interpretative skill, knows as it does the local conditions, warranting such beneficial measures. We thus leave the judgment under appeal uninterfered with. As a result, this appeal fails and is dismissed but without any order as to costs.
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1993 (10) TMI 370
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... ... ..... special Act. Section 142(c) of the Negotiable Instruments Act is relevant and it reads as follows "Cognizance of offence. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973, - . . . . . (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under section 138." 7. The above would show that notwithstanding any provision contained in the Code of Criminal Procedure, 1973, no court inferior to that of the Metropolitan Magistrate can try the offence punishable under section 142(c). Here, the Magistrate concerned is the Metropolitan Magistrate. Section 29(2) of the Code of Criminal Procedure is not applicable in view of the primary clause in section 142, viz., notwithstanding anything contained in the Code of Criminal Procedure. Hence I am unable to accept either of his submissions. 8. In the result, this petition does not deserve admission and shall stand dismissed.
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1993 (10) TMI 369
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... ... ..... d of an extent of 6 kanals 15 marlas (4083.75 Sq. Yds.), its conical point alone facing Delhi- Mathura Grand Trunk Road (falling in Group-2) which was owned by M/s. Cold Storage and Food Products at the rate of ₹ 2,625 per kanal (₹ 4.34 per Sq. Yd.); and of 73 kanals 2 Marias (44, 225 Sq. Yds.) situated away from Delhi-Mathura Grand Trunk Road with no access to it (following in Group-3) which was owned by Masjid of village Ranhera at the rate of ₹ 2,100 per kanal (₹ 3.47 per Sq. Yds.). 46. In the result we dismiss the Civil Appeals Nos. 369-371 of 1976 and partly allow the Civil Appeals Nos. 946-48 of 1977, enhancing the market-value of the acquired lands as stated above and granting solatium at the rate of 15 per cent per annum on such enhanced market-value together with interest thereon at the rate of 6 per cent per annum from the date of taking possession of the acquired plots of lands until payment, less the amounts, if any, already paid. No costs.
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1993 (10) TMI 368
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... ... ..... h effect from November 1, 1992 instead of April 1, 1992. The judgment of the learned single Judge was upheld by the Division Bench of the High Court. 3. We have heard learned Counsel for the parties. We are of the view that the High Court fell into patent error in postponing the date of the operation of the notification. The notification, amending the Rules, was legislative act. The amendment of the Rules being a delegated legislation, the High Court could not have interfered with the date of operation of the notification. 4. We set aside the direction given by the High Court regarding the postponement of the enforcement of the notification and we direct that the notification dated March 27, 1992 shall be operative from April 1, 1992. 5. We however, leave it open to the respondents to approach the appropriate Government, if so advised, under the Act for grant of exemption or for any other relief to which they may be entitled. We allow the appeals in the above terms. No costs.
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1993 (10) TMI 367
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... ... ..... r damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other. It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The judges must, therefore, exercise self-restraint. There are ways and ways of expressing disapproval of the orders of the subordinate courts but attributing motives to them is certainly not one of them. That is the surest way to take the judiciary downhill. 5.We, therefore, accept the petition and expunge the above quoted remarks from the judgment of the learned Judge of the High Court delivered on July 13, 1991 in Misc. Criminal Case Nos. 816 and 466 of 1991. The petition is allowed accordingly.
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1993 (10) TMI 366
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... ... ..... yment was received by the assessee from another company Harshad Dye Chem Industries as compensation by way of settlement for the technical know- how which was illegally made available to them by the employees of the assessee and not from the employees themselves who left the services of the assessee-company and joined the other company. Having regard to the decision of the Supreme Court in the case of Scientific Engg. House (P.) Ltd. v. CIT 1986 157 ITR 861, we do not find any infirmity in the decision of the Tribunal holding the receipts in question to be capital receipt and not a revenue receipt. 4. We, therefore, hold that the Tribunal was justified in holding that the amount of ₹ 32,500 received by the assessee from Harshad Dye Chem Industries represents capital receipt. Accordingly, the question referred to us, is answered in the affirmative, i.e., in favour of the assessee and against the revenue. 5. In the circumstances of the case, we make no order as to costs.
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1993 (10) TMI 365
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... ... ..... ess and until the period expires, the cause of action does not arise, for laying the complaint. Taking that view of the Matter, I am unable to accept the submission made by Mr. P. Kulandaivelu that the cause of action would arise from the very date of denial of the accused. 6. Mr. P. Kulandaivelu would refer to section 469(a) which reads as follows "469. Commencement of the period of limitation. - (1) The period of limitation, in relation to an offender, shall commence,- (a) on the date of the offence; or. . ." and that in the instant case, the offence would be deemed to have been committed on the date of the denial itself. I am unable to accept this submission because of the clear language of clause (c) of the proviso to section 138 and clause (b) of the proviso to section 142, which I have extracted above. 7. None of the submissions made by Mr. P. Kulandaivelu finds acceptance with me and hence this Crl. O. P. does not deserve admission and shall stand dismissed.
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1993 (10) TMI 364
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... ... ..... declare that Section 28 of the Administrative Tribunals Act, 1985 to the extent it divests the High Court of its jurisdiction under Article 226 is unconstitutional. As the vires of no statute is questioned in any of the Writ Petitions, we are of the view that the petitioners should approach the Andhra Pradesh State Administrative Tribunal established under the Administrative Tribunals Act, 1985 for redressal of their grievances when the petitioners have an effective alternative remedy, we are not inclined to adjudicate the individual merits of any case. If the petitioners approach the Administrative Tribunal, it shall entertain their representations and dispose of them in accordance with law. With the above declarations and directions, both the Writ Petitions and Writ Appeals are disposed of. No costs. 104. Before taking leave of these cases, we would like to thank immensely all the learned Counsel who assisted us in our highly delicate task of constitutional interpretation.
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1993 (10) TMI 363
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... ... ..... ment. He no doubt asked the State Government as W.S. Gilbert said "Take heart of grace, Thy steps retrace." 22.But once that is not forthcoming he will have to bid goodbye as Alfred De Musset said "Malgre moi me tourmente I can't help it, the idea torments me." 23.We have already referred to the letter dated May 5, 1978 wherein the appellant was requested to send the revised bill for the work done by him. The appellant shall send the revised bill as per that request. Within four weeks from the date of receipt of revised bill, the entire amount due to him shall be calculated in accordance with the amended Notification No. 126792JJ-75/25572 dated August 7, 1975 and shall be paid to him together with interest 12 per annum. We are obliged to award interest since the Government had the benefit of use of the said amount for a long number of years. 24.Subject to the above direction, the civil appeal is dismissed. However, there shall be no order as to costs.
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1993 (10) TMI 362
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... ... ..... well Dyes and Chemicals (P.) Ltd. 2.525 5,075 2,525 3,662 6,187 3 Swadee Chemicals (P.) Ltd 3.598 7,202 3,598 5,219 8.817 4 Oscar Chemicals (P.) Ltd. 1,876 3,754 1.876 2.722 4.598 5 Prolab Synthetics and Detergents (P.) Ltd. 1,283 2,567 1,283 1,862 3.145 6 Mikantra Trading (P.) Ltd. 1,530 7.19 3.59 5,208 8.798 7 Alkelite Intermediates (P.) Ltd. 2.386 4,764 2,386 3,461 5,847 8 Navketan Commercials Ltd 2,395 4,787 2,395 3.473 5,868 9 Shruti Traders Ltd. 2.493 5,017 2,493 3.616 6,109 10 Saki Agencies (P.) Ltd. 1.572 3,178 1,572 2,279 3,851 11 Skylab Detergents (P.) Ltd. 2.176 4,374 2,176 3.157 5.333 Total 27,672 5S.470 27,672 40.141 67.813 As renouncee the following companies applied rights sl. No. Name Applied Additional applied Total applied Allotment kept in abeyance Amount refunded Rs. 1 Maxwell Dyes and Chemicals (P.) Ltd. 58 116 174 58 46.400 2 Mikantra Trading (P.) Ltd. 115 230 345 115 92000 3 Lazor Detergents (P.) Ltd. 86 172 258 86 68,800 Total 259 518 777 259 2,07,200
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1993 (10) TMI 361
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... ... ..... t, it shall consider the correctness of the averment therein. If it comes to the conclusion that the 1st and 2nd respondents did have monies within its jurisdiction, the Bhavnagar court shall take the award on file under the provision of Section 5 of the said Act and shall proceed thereafter in accordance with its subsequent provisions. 21. In the event that no application for amendment as aforementioned is made by the appellant to the Bhavnagar court within 16 weeks from today the 3rd respondent shall be entitled to withdraw the amount of ₹ 6,40,000 deposited by it in the Registry of this Court. In the event of such an application being made within the time aforementioned the amount of ₹ 6,40,000 deposited by the 3rd respondent in the Registry of this Court shall stand transferred to the credit of the application of the appellant in the Bhavnagar court and its disposal shall be subject to the order of the Bhavnagar court. 22. There shall be no order as to costs.
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1993 (10) TMI 360
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... ... ..... the principle of agreement clause coming to an end cannot apply where the sole arbitrator has been given power to nominate another person. According to the learned Counsel once the nominee refused to act the Chief Engineer was again empowered to nominate another person in his place. In our opinion the submission is not well founded in law. A person nominated by the sole arbitrator stands substituted in his place. He does not have any independent personality. The power and authority exercised by him is the same as the authority which nominated him. Therefore, once the nominee refuses to act it shall be deemed that the arbitrator mentioned in the arbitration clause has refused to act and therefore, the clause would cease to operate in the same manner as the Chief Engineer himself has refused to act. The appointment of next arbitrator could, only, be in accordance with Section 8(1)(b) of the Act. For these reasons the appeal fails and is dismissed with costs. Appeal dismissed.
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1993 (10) TMI 359
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... ... ..... r the delinquent officer has drawn attention towards the various exhibits by which he wanted to allege that either copies of the documents desired by him were not given to him or that a misconduct has not been committed by him or that he is innocent. Since we are of the considered opinion that the present is not a case fit for invoking extraordinary jurisdiction and the order passed by the learned single Judge was not in accordance with law we are not required to go to the facts of the case. It has been found that the procedure as contemplated by Rule 81 has been followed and there is no irregularity which has been committed. Regarding the point that the appellant is not a State the same issue is not considered in this case since even on merit we find that the appeal is liable to be allowed. 17. Accordingly, the order of the learned single Judge on 23.4.1991 is set aside. The appeal is allowed and the writ petition is dismissed with cost of ₹ 2,000/-(Rs. two thousand).
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1993 (10) TMI 358
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... ... ..... the relationship between Chinathambi and Pavayee was adulterous and if it was sufficient to 1 AIR 1952 SC 231 1952 SCR 825 destroy the presumption in law as this plea does not appear to have been raised in the written statement nor any issue was framed on it nor any of the courts have recorded any finding on it. 6. As regards the deed of settlement executed by Chinathambi it having been found that Chinathambi got his share by way of partition decree, the ancestral or coparcenary nature of property came to an end and Chinathambi became its exclusive owner. Consequently he could execute a deed of settlement in favour of his wife and children. Since Ramaswamy derived his title from the settlement deed it was valid and he could convey his interest in favour of the appellant. 7. In the result this appeal succeeds and is allowed. The judgment and decree of the High Court is set aside and that of the First Appellate Court is restored. The parties shall however bear their own costs.
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1993 (10) TMI 357
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... ... ..... ay and the fact remains that it was not before the detention order was passed. There is no such request for the presence of a lawyer which would have a bearing on the voluntary nature of the confession and the subsequent retraction. Therefore the retraction is clearly an afterthought and if the same is not placed before the declaring authority that will not vitiate his subjective satisfaction. We may point out that this question was not raised before the High Court and for the first time learned counsel wanted us to investigate the nature of retraction and how it was made which is a question of fact. In Ashadevi case ((1979) 1 SCC 222 1979 SCC (Cri) 262 AIR 1979 SC 447) all those facts existed even before the detention order was passed. Therefore the ratio in Ashadevi case ((1979) 1 SCC 222 1979 SCC (Cri) 262 AIR 1979 SC 447) for all the above-stated reasons cannot be made applicable to the instant case. For these reasons, both the appeal and the writ petition are dismissed.
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1993 (10) TMI 356
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... ... ..... ule does not make any distinction between bona fide or mala fide possession of the incriminating material. The High Court reasoning, that the candidate having not used the material - in spite of the opportunity available to her - the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule. May be, because of strict vigilance in the examination hall the candidate was not in a position to take out the papers from the pencil box and use the same. The very fact that the took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the invigilator in the examination hall is sufficient to prove the charge of using unfair means by her in the examination under the Rule. 6. We allow the appeal, set aside the judgment of the High Court dated August 23, 1993. and dismiss the writ petition filed by the respondent, Vineeta Mahajan before the High Court. No costs.
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