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Showing 21 to 40 of 532 Records
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2006 (5) TMI 546
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... ... ..... the catchy submission that 'bail and not jail' is the rule, nor can we ignore the principle reflected by that catchphrase. On a consideration of the relevant circumstances obtaining and taking note of the period during which the appellant has been in custody, we are satisfied that it is a fit case for grant of bail to the appellant. Therefore, we, in reversal of the order of the Special Court, direct that Court to enlarge the appellant on bail on his furnishing security to the satisfaction of that Court in a sum of ₹ 1 lac with two solvent sureties for the like amount and on his fulfilling the other conditions of Section 438(2) of the Code. We also impose a further condition that he should report before the Investigating Officer between 10.00 AM and 12.00 Noon every third Saturday of the month and surrender his passport, (or file affidavit, if he has none) before the Special Court if it is already not in its custody. 10. The appeal is allowed on the above terms.
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2006 (5) TMI 545
Unauthorized and illegal structures put up in plot - from the respective sub-tenants, made improvements/partitions in the existing old structures and then let out the same to different sub-tenants (who are the petitioners) - seeking a temporary injunction restraining the Municipal Corporation from taking any action in respect of the said structure - HELD THAT:- The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.
It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality.
Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is 'no material', or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on 'no material' (similar to 'no evidence'), we refer not only to cases where there are total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was 'no material' to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction granted by the trial court.
We find no reason to interfere with the order of the High Court in the seven appeals. We accordingly dismiss these SLPs. as having no merit. The petitioners are granted 15 days time to make alternative arrangements. Parties to bear their respective costs.
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2006 (5) TMI 544
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... ... ..... er protest is a finding of fact, which does not call for our interference in this batch of appeals. In view of this, without going into any other detail, the appeals are dismissed with no order as to costs.
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2006 (5) TMI 543
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... ... ..... dated 16.10.1965 which provides that no ocean going vessel subsequently broken up after import shall be chargeable with duty which would be payable as if it were then imported to be broken up, should be deemed to be the date on which the permission for scrapping / breaking is granted by the Director General of Shipping. Therefore the Gujarat High Court's decision in the case of Haryana Ship Breakers Private Limited which has not noticed the Apex Court judgment in Jalyan Udyog, can not be followed in preference to the Apex Court's decision. 6. Following the ratio of the Tribunal's order in Shree Dev Krupa Ship Breakers supra, we answer the issue in dispute by holding that it is the Shipping Corporation of India which is the importer of the vessel "Vishva Yash" and that the appellant is not importer there of, and accordingly hold that the duty demand levied on the appellant is not sustainable. Therefore we set aside the impugned order and allow the appeal.
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2006 (5) TMI 542
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... ... ..... However, nothing over and above what is stated in the show cause notice will be demanded from the appellant.
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2006 (5) TMI 541
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... ... ..... probate, thereby lending credence to the claim of the appellant that the first respondent is deliberately protracting the probate proceedings so that he can avoid a decision in this case and continue to be in possession of the ground floor. 8. Therefore, with a view to do complete justice between the parties, it is appropriate to direct the trial court (Civil Judge, Senior Division, Alipore), where T.S. No. 10/1995 is pending, to proceed to hear arguments and deliver judgment in the suit. Nothing further will be required, if the suit is to be dismissed. But if the suit is to be decreed, the trial court should make it clear that the judgment and decree will come into effect only on the first respondent obtaining and producing the probate of the will, and till then the decree should be considered only as provisional and not to be given effect. We dispose of this appeal accordingly making it clear that nothing stated above is an expression of any opinion on merits of the case.
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2006 (5) TMI 540
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... ... ..... the legitimate powers of the Board or that the Board had violated any provision of law. I find that the petitioner has not established that by the single act of lending money and violating the provisions of certain Sections of the Act in the year 2000-2001 the company is being managed in a manner prejudicial to the interest of the company or to the public interest and that it amounts to fraud misfeasance, persistent negligence and further that the respondents have not conducted the affairs of the company in accordance with sound business principles and prudent commercial practices warranting removal of the MD and directors of the company. On the facts of the case, the MD and the directors of the company cannot be held to be unfit and improper persons to hold the office of MD/Directors or any other connected with the conduct and management of the company. 10. In view of the aforesaid, this reference is hereby dismissed. I do not, however, propose to make any order as to cost.
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2006 (5) TMI 539
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... ... ..... loss to the plaintiffs. The loss of the plaintiffs seems more to be financial which can be safeguarded by directing the defendant to maintain accounts of sale of the drug Meropenem under the trade name Meromer' and submit the accounts regularly to this Court every half yearly. 60. For the foregoing reasons the order dated 6th October, 2005 needs to be vacated and injunction application filed by the plaintiffs merits rejection and therefore, I.A. No. 8078/2005 filed by the plaintiffs is accordingly dismissed and IA No. 8561/2005 filed by the defendant is hereby allowed. The interim order dated 6th October, 2005 is vacated. The defendant is, however, directed to maintain the account of sale of drug under the trade name Meromer' which shall be submitted to this Court every half yearly. 61. Needless to mention, the views expressed above are tentative and prima facie conclusions which shall not be treated as expression of any final opinion on the final merits of the case.
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2006 (5) TMI 538
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... ... ..... o our notice by the learned Additional Solicitor General Mr. Gopal Subramanium that the order passed in Writ Appeal No. 300 of 2002 was interfered with by this Court in R.C. Tobacco Pvt. Ltd. Vs. Union of India, 2005(188) E.L.T. 129 (S.C.) . It is to be noted that the impugned order in this appeal is an interim order passed in Writ Appeal No. 210/2002. It is not in dispute that the Writ Petition No. 1384 of 2002 is still pending on the file of the High Court. We, therefore, request the High Court to dispose of the Writ Petition No. 1384 of 2002 on merits as expeditiously as possible and at any rate not later than three months from the date of receipt of this order. Both the parties are at liberty to file additional documents and pleadings , if any. The question of law is left open. Till the disposal of the Writ Petition by the High Court, the interim order passed by this Court on 27.10.2003 shall be in force. The Civil Appeal is disposed of accordingly. No order as to costs.
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2006 (5) TMI 537
Challenging the suspension of Secretary - pending initiation of disciplinary proceedings -contempt proceedings - pursuance of a resolution of the Board of Directors - HELD THAT:- Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable u/s 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal u/s 19 of the Act, can also encompass the incidental or inextricably connected directions.
The 'Bank' as such was not a party to the contempt proceedings. The learned single Judge proceeded on the basis that the Chairman and the Secretary-in-Charge represented the 'Bank' by referring to them as 'Respondent Bank' and directing them to reinstate the complainant (first respondent herein) and to pay all salary arrears to him. If the Chairman and Secretary-in-Charge were considered as representing the Bank for issuing such directions, certainly they could file an appeal against such directions.
The Chairman of the Bank, the Enquiry Officer, the previous Enquiry Officer (H. K. Maiti, whose appointment was revoked on 3.10.1997) and the Secretary-in-Charge of the Bank were shown as contemnors/respondents 1 to 4. As H.K. Maiti was not a party to the writ petition, and as he did not conduct the enquiry, there was no question of his disobeying any order. After perusing the records, the court by order dated 20.11.1998 came to the conclusion that a prima facie case was made out for issuing a show cause notice only against Sri S.K. Das (Enquiry Officer). This meant that no case was made out for issue of show cause notice to the Chairman and Secretary-in- Charge of the Bank. In fact, it was not the case of the first respondent that after the appointment of S.K. Das as Enquiry Officer, there was any disobedience by the Bank.
These were totally outside the scope of the proceedings for contempt and amounted to adjudication of rights and liabilities not in issue in the contempt proceedings. At all events, on the facts and circumstances, there was no disobedience, breach or neglect on the part of the Bank and its President and Secretary, to provoke the court to issue such directions, even assuming that such directions could be issued in the course of the contempt proceedings. Hence, directions (2) and (3) and the direction relating to revocation of suspension are liable to be set aside.
During the pendency of this appeal, the Enquiry Officer has completed the enquiry and submitted his report dated 18.7.2002. No action has been taken thereon in view of the pendency of this civil appeal and the interim order dated 25.2.2002 which permitted only the completion of the enquiry. In view of this decision, there will now be no impediment for the Bank to take further action based on such Inquiry Report.
Thus, we dispose of these matters as follows : (i) CA is allowed. The order dated 26.2.2001 of the Calcutta High Court is set aside. Directions (2) and (3) as also the direction that "the suspension shall be immediately deemed to have been revoked" contained in the orde of the learned Single Judge passed in CPAN are deleted.
(ii) SLP (C) are dismissed as infructuous.
(iii) The appellant-Bank is at liberty to take further action in pursuance of the Inquiry Report dated 18.7.2002, in accordance with law.
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2006 (5) TMI 536
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... ... ..... cashment of the Letter of Credit could not be accepted because prima facie Clause 8 of the said Letter of Credit did not provide for discounting of the said Letter of Credit and in view of such discounting the plaintiff would not be entitled to claim reimbursement on the ground that the said amount had been paid to the beneficiary. The Letter of Credit itself shows that the same was to be negotiated as had been done by the Appellant-Bank. 33. As far as the submission regarding the maintainability of the appeals are concerned, we are satisfied that the principles enunciated in Babulal Khimji's case (supra) which apply to Letters Patent Appeals, will not apply to appeals for which special leave is granted under Article 136 of the Constitution. 34. In such circumstances, these appeals succeed and are allowed. The judgment and order of the High Court in these three appeals are set aside and the unconditional leave granted to the Respondent-Bank to defend the suit is revoked.
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2006 (5) TMI 535
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... ... ..... must be framed by the State. It cannot be done by the Excise Commissioner. A distinction must be borne in mind between the concept of excise duty on production and manufacture of liquor and parting with the exclusive privilege of the State. Imposition of a penalty would not come within the purview of either of the two. When a price is fixed by the State for parting with its exclusive privilege, the same must again be provided in terms of the statute and the rules framed thereunder or by way of terms of licence. 26. Before parting with the case, however, we may observe that we have not gone into the question as regard the applicability of the rules vis-à-vis the new conditions imposed in the licence, in the instant case. We are, therefore, of the opinion that in absence of the requisite statutory backing, the impugned levy by the State cannot be held to be justified in law. We, therefore, do not find any merit in these appeals. They are dismissed accordingly. No costs.
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2006 (5) TMI 534
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... ... ..... tion 108. In the absence of such proof it cannot be concluded that the impugned transfers are in violation of the statutory requirements of Section 108. Therefore, the view taken by the Supreme Court in Mannalal Khetan v. Kedar Nath Khetan (supra) that any transfer which does not comply with the mandatory requirements of Section 108 will not be valid, cannot be applied to the case before me. Furthermore, if an instrument of transfer is not duly stamped, it would not invalidate the transaction between the parties to such instrument, as reiterated in Kothari Industrial Corporation Limited v. Lazor Detergents (supra). For these reasons, I am of the considered view that the petitioner has not established its case so as to grant the reliefs claimed in the company petition. In this backdrop of circumstances, it will be futile to go into the question of limitation as raised by the respondent Nos. 2 to 5. Accordingly, the company petition is dismissed, without any order as to costs.
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2006 (5) TMI 533
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... ... ..... ear that the conditions enumerated in this paragraph are satisfied if any one of the partners of the erstwhile partnership firm becomes a director in the corporate entity after its conversion. It is not in dispute that prior to conversion on 3/4/2000 the partnership firm had four partners two of whom were made directors of the company after it was incorporated This satisfies the requirement of para 4. In this view of the matter, the impugned communication dated August 22, 2003 declining the claim of the appellant cannot be sustained. In the result, the appeal is allowed, the impugned communication dated August 22, 2003 set aside and the respondent is directed to grant the benefit of fee continuity to the appellant. No costs.
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2006 (5) TMI 532
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... ... ..... ons enumerated in paragraph 4 are not satisfied and, therefore, the appellants in Appeal no. 310 of 2004 are not entitled to the benefit of exemption under paragraph 4. 8.The learned counsel appearing for the Board pointed out that in some of the appeals there is dispute as to whether the appellants therein satisfy the other requirements of paragraph 4 or not. We cannot deal with those issues in the first instance in appeal. The Board shall consider the claim of each broker in this regard and pass appropriate orders in accordance with law after affording it an opportunity of hearing. 9.In the result, the impugned demand notices and the circular dated March 28, 2002 issued by the Board in so far as it restricts the fee continuity benefit to only such brokers who were corporatised on and after 1/04/1997 are set aside and the appeals except appeal no.310 of 2004 are disposed of as above. Appeal no.310 of 2004 stands dismissed. Parties to bear their own costs in all the appeals.
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2006 (5) TMI 531
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... ... ..... introduced giving jurisdiction to the High Court, clearly the High Court is the appropriate forum. The special leave petitions are accordingly dismissed with liberty to the petitioner to approach the High Court by way of an appeal on the same cause of action.
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2006 (5) TMI 529
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... ... ..... e also decided. Whereas in the case of Raghu Nandan Lal (supra), counsel for the Revenue informed that appeal was not filed since the amount involved was small though he did not dispute that question of law involved in that case was also same. However, no details of the other two cases have been furnished either in appeal or at the time of hearing. Counsel for the Revenue could not point out any illegality in the order passed by the Tribunal which could require interference by this Court. Admittedly, the amount of the assessee was lying with the Revenue, adjustment of which, sought by the assessee against payment of advance tax. The request was not acceded to. On the other hand, for the alleged delayed payment of advance tax, interest is sought to be charged. It cannot be disputed that the adjustment of the amount seized was sought by the assessee for discharging his liability to pay advance tax. We find no reason to entertain the appeal. Consequently, the same is dismissed.
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2006 (5) TMI 528
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... ... ..... d, so that the order regarding pre-deposit made by the Tribunal is complied with. In the result, we allow this petition in part and to the following extent (1) The petitioner’s account in the Punjab National Bank, New Customs House, New Delhi shall stand de-frozen. (2) The petitioner shall in compliance with the direction issued by the Tribunal transfer by a bank draft a sum of ₹ 9,65,637/- from the said account to the Commissioner of Customs, ICD, Tughlakabad. The amount so transferred shall together with the payment already made by the petitioner in terms of Annexure-5 to the petition be deemed to be a sufficient compliance with the direction regarding pre-deposit. (3) Order dated 20th October, 2005 passed by the Tribunal dismissing the appeal for non-compliance with the directions regarding pre-deposit shall stand set aside the Appeal No. C/A. No. 637/2005 filed by the petitioner restored for being heard and disposed of on merits in accordance with law. DASTI.
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2006 (5) TMI 527
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... ... ..... t petition, the order of the Tribunal has been set aside. In that view of the matter this appeal has become infructuous and is dismissed as such. I.A. No. 1 is disposed of accordingly. Records be sent back to the Tribunal.
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2006 (5) TMI 526
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... ... ..... payable for the Excise Year 2005-2006. The respondents would be liable to pay 50 per cent of the license fee for the subsequent years on or before the thirty-first of December of that year and to file undertakings in the subsequent years until the Writ Petition is heard and finally decided by the High Court. If the respondents fail to make the deposit and to file the undertaking as indicated above, the appellants will be free to take all steps that are permissible under law for recovery of the entire fee due from the respondents as may be demanded from them in accordance with the relevant rules. In case the respondents succeed in their challenge in the writ petition, the State will be liable to refund the amount paid with interest thereon at the rate of 9 per annum from the date of payment till the date of refund. The amount will be refunded within two months of the allowing of the writ petition unless otherwise agreed to by the parties, regarding the adjustment of that sum.
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