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Showing 41 to 60 of 576 Records
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2005 (10) TMI 574
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... ... ..... ause is in the nature of a remedy of last resort. The power under this clause has to be exercised only when a very strong case is made out. The words 'just and equitable' are not to be read ejusdem generis with the preceding Clauses and they enable the Court to exercise its jurisdiction on equitable considerations having regard to the facts and circumstances of each case. The decisive question must be whether on the date of presentation of the winding up petition there was any reasonable hope that the object of running a Company at a profit for which it was formed could be attained. In the present case no facts have been pleaded which could justify the winding up of the Company under this clause. It is not just and equitable to wind up the Company which is making profits for the last several decades. We have therefore no hesitation in rejecting this contention. 19. No other point was raised. In the result, the Company appeals fail and they stand dismissed with costs.
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2005 (10) TMI 573
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... ... ..... l of the general body. This order is in force and binding upon the respondents. Nevertheless, the petitioners approached the CLB in May 2003 itself with similar grounds and for identical prayer restraining the respondents from selling the Company's properties. In these circumstances, the statement of the respondents that the board of directors will not sell the Company's properties without prior approval of the general body and that the properties will be sold for the best possible price in strict compliance with the order dated 10.04.2003 of the Kerala High Court, safeguarding the interests of the minority shareholders is taken on record and they must strictly act accordingly, which shall, however, be without prejudice to the rights of the financial institutions in realization of their outstanding dues from the Company and the statutory dues, if any. With these directions, the company petition stands disposed of. All interim orders are vacated. No order as to costs.
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2005 (10) TMI 572
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... ... ..... ction (5) of Section 5 of the MCOC Act are very much desired. By this amendment, under special circumstances the permission to place the matters before the District Judge or a Judge as directed by the District Judge, shall be given so as to pass the appropriate valid remand orders. But, this cannot be done unless Sub-section (5) of Section 5 of the MCOC Act, 1999 is amended. Therefore, we suggest the Government of Maharashtra to effect the appropriate amendments in Sub-section (5) of Section 5 of the MCOC Act, 1999 in respect of the carrying out of the urgent business in the absence of a the Judge of the Special Court to deal with the urgent business of the Special Court. 51. In the result, we find there is no substance in the petition. The criminal writ petition is hereby dismissed. The rule is discharged. 52. Shri. Solkar, at this stage, requests for leave to appeal to the Supreme Court. We do not find any vital question involved in this case. The leave is hereby rejected.
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2005 (10) TMI 571
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... ... ..... neys, as sole Arbitrator and in case he is not available or declines to act or resigns, then to a single Arbitrator if the partners agree upon one otherwise to the Arbitrators to be appointed by each party to the difference in accordance with the provision of the Arbitration and Conciliation Act, 1996, or any statutory modification thereof”. 2. The learned counsel for the applicants has also drawn my attention to letter dated 2nd December, 2004, at Exhibit-C to the application, sent by the named arbitrator Mr. Arun Jaswantlal, in which he has declined to take up the arbitration proceedings. In the arbitration clause there is a provision for appointment of the sole arbitrator. 3. On consideration of the totality of the facts and circumstances of the case, I deem it proper to appoint Mr. Justice R.J. Kochar, retired Judge of this Court to accept this arbitration. I order accordingly. He would be at liberty to fix his own fees. This application is accordingly disposed of.
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2005 (10) TMI 570
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... ... ..... ent of compensation. 11. Shri Mohite submitted that considering the various difficulties faced by the Applicant, it is impossible for the Applicant to pay the amount as directed by the Sessions Court. He has invited my attention to the documents annexed as annexure "G" (page 33 of the petition). In view of this aspect, sufficient time deserves to be granted to the Applicant to pay the amount as directed by the Sessions Court. 12. Hence the following order is passed (i) Order dated 22nd August, 2005 is confirmed with modification that the time to deposit the sum of ₹ 6,25,000/- is extended till 20th January, 2006. (ii) Non-bailable warrant issued against the Applicant will not be executed till 20th January, 2006. It is made clear that notwithstanding the time extended by this Court, the Appellate Court will proceed with the hearing of the Appeal if it is ready in all respects. (iii) Parties and the concerned Court to act on an authenticated copy of this order.
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2005 (10) TMI 569
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... ... ..... ivil suit, especially when all the parties before the Clb proceedings are not parties before the civil court. Furthermore, the grievances of the petitioners cannot be remedied by the civil court, even if the partition suit is decreed in terms of the prayer made in the civil suit, in view of the fact that the Clb alone has ample jurisdiction under Section 402 to make appropriate order with a view to bringing to an end the alleged acts of oppression, if made out by the petitioners. Therefore, I do not find any merit in the prayer made in the present application to pass an order of injunction restraining the petitioners from' continuing the present proceedings till the disposal of the civil suit in O.S. No. 114/2003 on the file of the Court of Subordinate Judge, Tiruppur. Accordingly, the prayer of the applicants is rejected. In view of this, the company petition will be heard on 29.12.2005 at 10.30 a.m. With the above directions, the company application stands disposed of.
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2005 (10) TMI 568
Suit for Partition of property - family settlements - rearrangement of antecedent interests - whether the two agreements between the appellants and VMS were conditional - Whether the disputes between the parties were set at rest by a valid consent decree dated 25th August, 1993 disposing of Suit No.63 of 1975 and Suit No.1495 of 1989 - HELD THAT:- As we have said, each of the first two agreements recorded the relinquishment of rights by AA, KK and Guneeta in the suit properties and assignment of such rights to VMS. This was recorded in the agreements as already having taken place. As far as the first agreement was concerned, the relinquishment of VMS' rights in the Bhopal house was effected by clause (e). Clause (d) of the second agreement recorded that AA had already received the consideration in respect of the properties mentioned from VMS. The further payments to be made by VMS to the three appellants were, on the other hand, to be made in future.
The phrase "subject to the payments being made" in clause (d) of the first agreement and clause (f) of the second agreement does not operate as a precondition to the relinquishment of the rights of KK, Guneeta and AA in the suit properties. According to these clauses of the agreements, vesting had already taken place or was to take place with the execution of the agreements. In this context, to construe the phrase 'subject to' as amounting to a pre-condition would be contrary to the body of the clauses in which the phrase appears. The only meaning we can give to the phrase consistently with the other terms of the agreement, is that it imposed a personal obligation on VMS to make the payments . By the agreement, as has been rightly held by the courts below, the parties had finally resolved disputes with regard to their shares in the suit properties. Therefore, even if VMS had defaulted in making payment to the appellants of the amounts as specified in the agreements that would not give the appellants a ground to rescind the agreements.
The Composition Deed in this case was a transaction between the members of the same family for the mutual benefit of such members. It is not the appellants' case that the agreements required registration under any other Act. Apart from this, there is the principle that Courts lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds particularly when the parties have mutually received benefits under the arrangement . Both the courts below had concurrently found that the parties had enjoyed material benefits under the agreements. We have ourselves also re-scrutinized the evidence on record on this aspect and have found nothing to persuade us to take a contrary view. Furthermore, in this case the agreements had merged in the decree of the Court which is also excepted under Sub section 2(vi) of Section 17 of the Registration Act, 1908 .
The appellants then contended that the exception created in respect of decrees and orders of a Court would not apply in this case because Clause (e) of the second agreement related to immoveable properties other than those which were the subject matter of the pending suits. The submission is misconceived. The only property which did not form part of the suit properties were the forty four acres of land at Raisen belonging to AA's son. Clause (e) in the second agreement did not seek to either create, declare, assign, limit or extinguish either in present or in future, any right title or interest in the property within the meaning of Section 17 (1)(b) of the Registration Act. All that Clause (e) of the second Agreement expressly did was to clarify a previous deal. It did not affect any change to any legal rights in the property and merely recited what the existing rights were. This clause would not therefore serve to take the consent decree dated 25th August, 1993 outside the scope of the exception in Section 17(2)(vi) of the Registration Act, 1908.
The disputes in the two suits between all the parties were resolved by the three agreements. But in concluding the three agreements, care was taken to see that the terms and conditions of one agreement did not conflict with the terms and conditions of another. Parties had separately signed their agreements and approached the Court (albeit at different points of time) seeking to get a decree passed in terms of their agreements. As such it was not necessary for the parties to one agreement to sign the other two agreements. It was thus also not necessary for any of the appellants to have signed the third agreement entered. The final decree dated 25th August, 1993 was on the basis of all three agreements each of which had been signed by the concerned parties and their statements in support thereof were on record in compliance with Order XXIII Rule 3 of the Code.
The appellants, who were the assignors in this case, were aware that they had assigned their rights and liabilities in the suit properties to VMS. They did not choose to bring the fact of such assignment on record in the pending suits. Furthermore, the suits were not being "continued" but were being brought to an end as far as the appellants were concerned. For both these reasons, VMS' choice not to apply for leave under Order 22 Rule 10 cannot be construed as having been made with any ulterior motive to defraud the appellants.
The pleadings of fraud in both the applications of the appellants were in any event grossly inadequate. Both the Trial Court and the Division Bench have correctly held so. In fact the basic cause for which the appellants initially came to the Court was a non payment of amounts as specified under the agreements by VMS. We concur with the finding of the learned Single Judge that the appellants could execute the decree for the monies due under compromise decree dated 25th August 1993. Mere non-payment was certainly not supportive of a ground for setting aside the decree on the basis of an allegation of fraud.
The final submission of the appellants was that time for payments under the agreements was of the essence. But the appellants themselves had never understood the agreements in that manner. They had asked for payment much after the dates had expired. As far as KK and Guneeta were concerned, in their application made in 1995 what they had asked for was for payments due in 1993. It was only as alternative that they had pleaded for the decree to be set aside that too on the ground of alleged contempt having been committed by VMS. For the reasons stated, we are of the view that these appeals must be, and they are hereby dismissed with costs.
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2005 (10) TMI 567
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... ... ..... ords of the case, we have found that all the three courts have consistently observed that the benefit of Section 11(17) of the Act cannot be extended to the appellant in this case and we are of opinion that the view taken by the courts below is correct and there is no ground to interfere in this appeal. Hence, as a result of our above discussions we are of opinion that there is no merit in this appeal and the same is dismissed. However, since the appellant had been in possession for long time and it is private limited company we grant nine months time to it to deliver the possession to the respondent- landlords. The appellant will furnish an undertaking before the Rent Controller to the above effect within four weeks from today and in case the appellant does not file any such undertaking, then it will be open to the respondents to execute this order as a decree and get vacant possession of the premises in question with the help of Police. There would be no order as to costs.
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2005 (10) TMI 566
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... ... ..... ciples of natural justice. In fact, during the course of hearing, Mr.Malkan failed to point out whether any show cause notice was given to the petitioner or whether the petitioner was heard before making the impugned order. To the contrary, the affidavit in reply dated 13/10/2005 itself records that the investigation is in progress and hence, copies of the statements of different persons recorded by the authorities have not been supplied to the petitioner. 9. In such circumstances, the impugned communication / order dated 25/8/2005 and the subsequent communication dated 26/9/2005 cannot be permitted to stand. In the circumstances, both the order / communication dated 25/8/2005 (Annexure “A”) and communication dated 26/9/2005 (Annexure “C-1”) are hereby quashed and set aside. The petition is allowed in the aforesaid terms. Rule made absolute. The respondents to pay the costs quantified at ₹ 3,500 00 to the petitioner. Direct service is permitted.
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2005 (10) TMI 565
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... ... ..... cuments not hitherto supplied and after returning all the non-relied upon documents to them. In this connection, it is made clear that the appellants shall be allowed to inspect all the documents not hitherto supplied, listed at pages 175 to 164 of paper book (Volume No. X) filed in Appeal Nos. E/628 and 629/ 2005, and to obtain copies/extracts of those records in respect of which it might not be feasible for the department to supply copies. Copies of other documents shall be issued to the parties. It goes without saying that a reasonable opportunity of being personally heard also shall be afforded to the appellants. We do expect the adjudicating authority to conduct his proceedings within his territorial jurisdiction comprising the assessees' premises. It is also desired that it be ensured that copies of orders of adjudication issued to the parties bear the signature of the adjudicating authority. Operative portion of the order was pronounced in open Court on 6.10.2005.
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2005 (10) TMI 564
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... ... ..... ur weeks as originally undertaken by it, the amount of ₹ 1 crore will carry interest at the rate of 10 per cent per annum (instead of five per cent per annum as stipulated) from the date of the judgment of the Division Bench of the High Court till the date of its recovery. L & T would be entitled to execute this order for recovery as if it were a decree through the concerned district court in Calcutta, charged on the assets of Subhash Projects and on the properties of its Directors and personally from them. 14. In the result, C.A. No. 5030 of 1999 filed by Subhash Projects is dismissed with costs. C.A. No. 5032 of 1999 filed by the Union of India is dismissed with no order as to costs. C.A. No. 5031 of 1999 filed by L & T is also dismissed, subject to the direction regarding the payment of ₹ 1 crore with the provision for interest and the recovery of the amounts as provided hereinbefore. In this appeal also, the parties will suffer their respective costs.
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2005 (10) TMI 563
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... ... ..... ase we have already mentioned that the Assessing Officer has not recorded any specific satisfaction as warranted under section 271 of the Act while framing the assessment. Hence, respectfully following the decisions (supra) of the Tribunal and of jurisdictional High Court of Delhi and the decision (supra) of Punjab & Haryana High Court, it is held that the jurisdiction assumed by the Assessing Officer in initiating penalty proceedings against the assessee under section 271(1)(c) without recording such satisfaction as warranted under section 271(1)(c) is bad in law and so the impugned penalty amount is liable to be cancelled. 10. For the reasons stated above, we have come to the conclusion that the CIT (Appeals) has rightly cancelled the impugned penalty amount imposed by the Assessing Officer and so the impugned order of the CIT (Appeals) is upheld and the ground of appeal taken by the Revenue is rejected. 11. In the result, the appeal filed by the Revenue, is dismissed.
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2005 (10) TMI 562
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... ... ..... not be any prejudice to the accused persons. Thus, on perusal of the order of the learned Magistrate dated 18-5-2005, I find that the order is just, legal and proper and no interference is called for. Application is rejected. 11. It is clarified that if any objection is raised during the evidence taking stage regarding admissibility of any material or item or oral evidence, the trial Court to make a note of such objection and mark the objected document or portion tentatively as an Exhibit in the case subject to such objections to be decided at the last stage during the final judgment. 12. At this stage the learned advocate for the applicant states that he wishes to challenge this order before the Supreme Court, hence, the proceedings before the trial Court may be stayed for a period of four weeks from today. The said request is reasonable, hence, the proceedings before the trial Court are stayed for a period of four weeks from today. 13. Criminal Application is disposed of.
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2005 (10) TMI 561
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... ... ..... ercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees Welfare Association vs. Union of India (1989) 4 SCC 187 (para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in State of J & K vs. A.R. Zakki 1992 Supp. (1) SCC 548. In A.K. Roy vs. Union of India (1982) 1 SCC 271, it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature. Therefore, the submission made by the learned counsel for the appellant cannot be accepted. 6. The appeal is accordingly dismissed. No costs.
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2005 (10) TMI 560
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... ... ..... Third Member cannot proceed with the hearing, if the questions are not framed on which there is a difference of opinion. Reliance was also placed on decisions of Allahbad High Court in the case of Jan Mohammed Vs. Commissioner of Income-tax, U.P. & V.P., Lucknow, 1953 23 ITR 15 (All.) and Madras High Court in the case of Income-tax Officer, Company Circle-ii(i), Madras & Ors. Vs. Vice-President, Income-tax Appellate Tribunal, Madras & Ors., 1985 155 ITR 310 (Mad.) in relation to the powers of the Third Members. 2. It is not necessary to deal with any aspect of the controversy on merits considering the fact that the petitioners are seeking permission to withdraw the petition so as to enable the petitioners to approach the learned President as well as the original bench with a request to formulate the point or points on which there is a difference of opinion amongst the members constituting the bench. Permission granted. The petition stands disposed of accordingly.
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2005 (10) TMI 559
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... ... ..... f this Court, as the Umpire. The Umpire, Mr. V. K. Gupta, shall forthwith forward all papers and documents to Justice N. Santosh Hegde at his residence, i.e., 9, Krishna Menon Marg, New Delhi. The parties shall appear before Justice N. Santosh Hegde on 6.10.2005 at 5.00 P.M. at 9, Krishna Menon Marg, New Delhi. Justice N. Santosh Hegde shall fix his fees which shall be borne by both the parties equally. Justice N. Santosh Hegde is requested to fix the schedule and give his award within a period of 4 months from the date of receipt of all the papers and documents from the outgoing Umpire Mr. V. K. Gupta. The award to be filed in this Court. We leave the question of grant of interest open to be decided by the Umpire in accordance with law. Lastly, it is clarified that this is not a new reference but a continuation of the earlier proceedings and thus the Arbitration Act 1940 shall continue to apply. The Appeals stand disposed off accordingly. There will be no order as to costs.
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2005 (10) TMI 558
Challenged the Order passed by HC, recording a finding of acquittal - illegal gratification - Offences punishable under Sections 7, 11, 13(3) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 ('the Act') - Validity of sanction - Respondent herein was a Mandal Revenue Inspector - HELD THAT:- A bare perusal of the order of sanction shows that the allegation as against the Respondent herein for taking into consideration that the Government of Andhra Pradesh, who was the competent authority to remove the said Sri K. Narasimha Chari, Mandal Revenue Inspector, Cuddapah, from the Government Service, after fully and carefully examining the material placed before them in respect of the said allegations and having regard to the circumstances of the case considered that the Respondent should be prosecuted in the court of law; whereupon the order of sanction was issued in the name of the Governor. Shri N. Madanmohan Reddy, Secretary to the Government, merely authenticated the said order of sanction which was issued in the name of the Governor of Andhra Pradesh.
The order of sanction was, thus, issued by the State in discharge of its statutory functions in terms of Section 19 of the Act. The order of sanction was authenticated. The said order of sanction was an executive action of a State having been issued in the name of the Governor. It was authenticated in the manner specified in the Rules of Executive Business. The authenticity of the said order has not been questioned. It was, therefore, a public document within the meaning of Section 74 of the Indian Evidence Act. PW-6 proved the signature of Shri N. Madanmohan Reddy. He identified his signature. He was not cross-examined on the premise that he did not know the signature of Shri N. Madanmohan Reddy. In answer to the only question put to him, he stated "By the time the Secretary signed in Ex.P.17 I was in G.A.D."
The Respondent, therefore, allowed the said document to be exhibited without any demur. He did not question the admissibility of the said document before the Trial Court, either when the same was exhibited or at the final hearing before the trial court. He, therefore, could not be permitted to question the admissibility of the said document for the first time before the appellate court.
So far as the merit of the matter is concerned, as would appear from the discussions made hereinbefore that the prosecution case is not entirely free from doubt. PW-1 intended to obtain a signature as regard valuation of his lands so as to enable him to get himself registered with the Public Works Department as a contractor. He went to PW-3. PW-3 did not send the same to the Respondent by following the existing procedure. He merely initialed the same and handed over it back to PW-1 allegedly for the purpose of giving it to the Respondent who in turn asked to take it to PW-4.
PW-1 appears to be an influential person. He could approach PW-3 directly. He was in a position to obtain a certificate, copies of various documents from PW-4 on the same day as also obtain a certificate from him on the same day. Thus, as the valuation certificate was sent to PW-3 by the Respondent on 04.03.1994, there does not appear to be any good reason as to why PW-1 would not come to know thereabout. According to him, he came to know that PW-8 was at Cuddapah and be approached him in the early morning at 6.35 on 05.03.1994.
Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that the materials brought on records would lead to only one conclusion, i.e., the guilt of the accused. The impugned judgment, therefore, is sustained.
Thus, we do not intend to interfere with the impugned judgment of the High Court. The Appeal is dismissed accordingly.
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2005 (10) TMI 557
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... ... ..... ELT 77 (Tri.-Del.) on the ground that the facts are within the knowledge of the Department on investigation and the Central Excise officers having visited factory premises of the assessee and therefore the delay in issue of show cause notice in several years is a ground to set aside the demand and penalty on time bar. 2. The learned SDR reiterates the Department's contention. 3. On a careful consideration of the submissions made by both the sides, we find that the show cause notice had been issued after a lapse of time in January 2004 as against the facts which came to the notice of the Department on 18.11.1999. In view of the citations referred to above by the learned Counsel, the appellants succeed on time bar. We agree with the contention of the appellant that the demand is barred by time and on this ground the appeal is required to be allowed. The stay application and the appeal are allowed with consequential relief, if any. Pronounced and dictated in the open Court.
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2005 (10) TMI 556
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... ... ..... assessee’s claim of loss on account of fluctuation in foreign currency rate was allowable as claimed by assessee Held, yes 44. ITAT Delhi Bench ‘A’ in the case of Hero Honda Motors Ltd. (supra) held that investment allowance was allowable in respect of foreign exchange fluctuation accrued on during the relevant previous year in respect of loans taken for purchase of plant and machinery installed and put to use in earlier years. 45. Considering the above decisions, the submission of Ld. DR cannot be accepted. Considering the above discussion additional ground of the assessee is allowed and Assessing Officer is directed to allow deduction in accordance with law and our observation above by verifying the amount in question. As a result, this additional ground of appeal of the assessee is allowed. No other ground is argued or pressed. 46. As a result, appeal of the assessee is partly allowed. 47. Both the appeals of the assessee are accordingly partly allowed.
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2005 (10) TMI 555
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... ... ..... on the basis of the allegations contained in the complaint, was clearly barred by limitation as the two year period prescribed by Section 24A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal. Moreover, the National Commission proceeded on the incorrect factual basis that the bhatties had been removed during the pendency of the appeal before it. The finding was contrary to the records. As we have said, according to the complaint itself, the offending bhatties had already been removed in 1994 three years before the complaint was filed by the respondent. Apart from this there was no basis for the Commission to have awarded to ₹ 2 lacs to the respondent by way of compensation. In the circumstances of the case the appeal is allowed and the decision of the National Commission in so far as it directed the appellant to pay compensation to the respondent is set aside. No order as to costs.
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