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Showing 21 to 40 of 724 Records
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2007 (4) TMI 763 - BOMBAY HIGH COURT
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... ... ..... ch case, the offerer shall remain present in the office for negotiations. As a result of negotiation the offerer shall give his revised offer in writing. The original offer shall then be treated as modified and modified offer shall be treated as final offer. 34. If the figure disclosed by the petitioner of ₹ 7,90,00,000/- is correct, the respondents are directed to proceed under Clause 22 considering the petitioner and respondent No. 5 to be the substantially responsive offerers whose offers are the highest. 35. Rule is made absolute by directing the respondent Nos. 2 to 4 to consider the petitioner's bid by opening his envelope No. 2 and by inviting respondent No. 5 and the petitioner and permitting them to revise their offers under Clause 22 of the tender terms. Respondent Nos. 2 to 4 shall pay the costs of this writ petition to the petitioner fixed at ₹ 15,000/-. The order is stayed for a period of 12 weeks to enable the respondents to challenge this order.
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2007 (4) TMI 762 - CESTAT NEW DELHI
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... ... ..... SDR would point out that this Tribunal has held in the case of Indian Farmers Fertilizer Co-op. Ltd. v. CCE, Meerut - 2006 (2) S.T.R. 194 that the service portion of a know-how contract can be subjected to Service tax as consulting engineer. 6. The appellant’s case is, prima facie, covered by the decisions in the case of Daelim Industrial Co. Ltd. and Larsen & Toubro Ltd. and one of those orders remains confirmed by the Hon’ble Supreme Court. The new provision in the Finance Bill also would indicate that works contracts attract levy only after that provision is enacted. The present tax demand is, therefore, not sustainable. 7. In view of what is stated above, the stay application is allowed and recovery stayed till the disposal of the appeal. 8. The appeal to be listed on priority in view of the large tax amount involved. Registry is directed to list the appeal in the week starting from First week of June. (Dictated and pronounced in open Court)
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2007 (4) TMI 761 - BOMBAY HIGH COURT
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... ... ..... isputes between the licensor and licensee in relation to recovery of licence fee and recovery of possession. Section 41 also created forum for filing an appeal against the decision of Small Causes Court. Thus, as the legislature has created a special forum for adjudication of disputes between the licensee and licensor in relation to recovery of possession and licence fee, the jurisdiction of the court of original civil jurisdiction will be ousted by necessary implication and, therefore, applying the law laid down by the Supreme Court in Natraj Studios, the reference to arbitration of the question which falls for decision before the Small Causes Court suit under Section 41, cannot be possible. 12. We are in respectful agreement with the view expressed in the judgment of the Learned Single Judge. 13. In these circumstances, we do not find any infirmity in the judgment and order appealed against. The appeal shall accordingly stand dismissed. There shall be no order as to costs.
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2007 (4) TMI 760 - SUPREME COURT
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... ... ..... Act is established and also to decide whether the claim now made is a claim that comes within the purview of Clause 25A of the tender conditions in case it is found to be an agreement within the meaning of Section 7 of the Act. Only on deciding these two aspects can the arbitrator go into the merits of the claim made by the respondent. But we clarify that it does not mean, that he should treat these two aspects as preliminary issues and decide them first; but only that he must decide them without fail while proceeding to finally pronounce his award. 12. In this view of the matter, we see no reason to interfere with the appointment of an arbitrator. We dismiss this appeal giving liberty to the parties to raise all their contentions based on lack of jurisdiction of the arbitral tribunal before the arbitrator. The arbitrator will permit the appellant to amend or supplement the objections already filed by it if it is felt necessary by the appellant. We make no order as to costs.
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2007 (4) TMI 759 - SUPREME COURT
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... ... ..... Vidyalaya Sangathan and Ors. v. Sajal Kumar Roy and Ors. 19. It may be that some other persons similarly situated have been appointed. But Article 14 as is well known contains a positive concept. A Writ of Mandamus can be issued by the High Court only when there exists a legal right in the Writ Petitioner and corresponding legal obligation in the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated by a court of law. 20. It is also well settled that there cannot be equality in illegality. See Sushanta Tagore and Ors. v. Union of India and Ors. AIR2005SC1975 , State, CBI v. Sashi Balasubramanian and Anr. 2007 289ITR8(SC) and U.P. State Sugar Corporation Ltd. and Anr. v. Sant Raj Singh and Ors. (2006)IIILLJ509SC . 21. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The Appeal is allowed. However, in the facts and circumstances of this case, there shall be no order as to costs.
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2007 (4) TMI 758 - GUJARAT HIGH COURT
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... ... ..... that neither reasonable opportunity was given to hear the assessee before the order was passed on 18.12.2006 nor the reply of the assessee has been considered. In the order dated 18.12.2006 passed by the Dy. Commissioner of Income Tax (OSD) Range1, Ahmedabad under Section 142(2A) of the Act, there was no reference of the reply filed by the assessee. Even it is not clear whether the order was passed even before filing of the reply on that date. These facts are not controverted by the learned counsel for the Revenue. Considering these facts, which are not in dispute, we set aside the order dated 18.12.2006 passed by the Dy. Commissioner of Income Tax (OSD) Range1, Ahmedabad. However, liberty is given to the Dy. Commissioner of Income Tax (OSD) Range1, Ahmedabad, to pass a fresh and reasoned order after considering the reply filed by the assessee and after giving reasonable opportunity of being heard to the assessee. The Petition stands disposed of with the aforesaid directions.
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2007 (4) TMI 757 - BOMBAY HIGH COURT
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... ... ..... hat stopping the construction of the hotel would not be appropriate and the passing of a blanket injunction restraining the Defendants from alienating or transferring the property would cause hindrance in the completion of the project since, for a project of the magnitude involved it may become necessary for the Fifth Defendant to create encumbrances on the property. The directions issued by the Learned Single Judge would adequately secure the rights of the parties during the pendency of the suit. 41. As already noted earlier, a Division Bench of this Court consisting of Dr. S. Radhakrishnan and Mr.Justice S.J. Vazifdar has by orders dated 15th November 2006 and 20th December 2006 imposed sanctions on the Defendants for breach of the interim order dated 25th October 2005. The effect of the directions contained in the order of the Division Bench has to continue upon the disposal of the appeal, pending the disposal of the suit. 42. The Appeals shall accordingly stand dismissed.
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2007 (4) TMI 756 - CESTAT AHMEDABAD
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... ... ..... ce in this regard is made to Tribunal's decision in case of TGL Poshak Corpn. reported in 2002 (140) ELT 187 (Tri.-Chennai), which has discussed the entire law on the point; Sri Jayajothi & Co. Ltd. reported in 2002 (141) ELT 676 (T); Emtex Synthetics Ltd. reported in 2003 (54) RLT 526 (CEGAT-Del.) 2003 (151) ELT 170 (T). The law on the point is well settled that the charges of clandestine removal are required to be proved beyond doubt by production of sufficient and affirmative evidence and not on the basis of assumptions and presumptions. It is not understood as to why the Revenue has not conducted further verification from the buyers of the goods or the purchasers, when the details of the same were, according to them, available in said register. Having failed to conduct further investigation, Revenue can not now confirm the demand on the basis of sole entry. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellant.
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2007 (4) TMI 755 - DELHI HIGH COURT
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... ... ..... Sharma in consultation with other partners. It is not stated if the cheque was issued from the account of proprietorship concern or partnership concern or company. Nor it is stated who were the persons responsible for business of the firm or company when cheque was issued or got dishonoured. It is settled law that only drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act on the cheque getting dishonoured. Since the petitioner in question was neither the drawer of the cheque nor it is alleged that he was partner or proprietor of firm when cheque got dishonoured or he was the person responsible for non-payment of cheque amount, no offence under Section 138 of Negotiable Instruments Act can be made out against the petitioner. 4. In view of my foregoing discussion, the proceedings as against the petitioner, are liable to be quashed and are hereby quashed in Complaint Case No. 976/1/2005 titled "Praveen Kumar Jain v. R.D. Sharma and Ors.
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2007 (4) TMI 754 - SC ORDER
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... ... ..... t within the parameters indicated in the decision of this Court in the case of Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002) 4 SCC 388. Hence, the Curative Petition is dismissed.
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2007 (4) TMI 753 - SC ORDER
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... ... ..... igh Courts have also decided the matter afresh. The High Court’s orders, wherever it has been passed in favour of the tax payers, shall operate so far as the concerned writ petitioners are concerned. A list has been file d indicating that seven of the High Courts have already decided the writ petitions and the judgments are awaited in respect of five other High Courts. The concerned High Courts, i.e. Karnataka, Rajasthan, Andhra Pradesh, Orissa and Tamil Nadu are requested to dispose of the matter pursuant to the directions of this Court dated 14 th July, 2006 within a period of three months. The matter is adjourned by four months.
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2007 (4) TMI 752 - SUPREME COURT
Benami Transactions or not - Suit for Partition - Claiming 3/7th share of the property - Onus of proof - family dispute - inheritance - Power-of attorney executed before a Magistrate at Rangoon - Dr. Ghosh was an attesting witness therein - Interestingly, Suprovabala described herself as daughter of Babu Rangalal Ghosh and not the wife of Dr. Ghosh therein - registered indenture was executed by the Administrator General of Bengal to the estate of Edwin St. Clair Vallentine in favour of Suprovabala for a sum - during the life time of Dr. Ghosh, the name of Suprovabala was mutated - The learned trial Judge that, it is not to be a case of benami transaction.
HELD THAT:- The fact that Amal allowed the order of mutation to attain finality, thus, would also be a pointer to suggest that despite such bitter relationship between the parties he accepted the same ; more so, when mutation of one's name in the Municipal Corporation confers upon him a variety of rights and obligations. He had rights and obligations in relation thereto because, according to him, in relation to the said property vis-a-vis Calcutta Municipal Corporation, he was residing with his wife, he allegedly inducted tenants and had been realizing rent from them.
We have seen hereinbefore that the Appellant examined herself as a witness. The wife of Amal even did not do so. An adverse inference should be drawn against her.
Daughter of Respondent No. 1 (Respondent No. 2) who was born in 1954 examined herself as DW-1. She evidently had no knowledge about the transaction. She could not have any. At least it was expected that Respondent No. 1 might have gathered some knowledge keeping in view the conduct of her husband vis-a-vis the sisters in relation to the property. Even otherwise, she was a party to the suit. No evidence, worth the name, therefore, had been adduced on behalf of Respondent No. 1.
Interestingly, Amal pleaded ouster. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a' fortiori the title of other co-sharers must be held to have been accepted.
P.W. 4 Chandi Charan Ghosh is a common relation. According to him, Dr. Ghosh acknowledged the title of his wife before him. We may not rely on his evidence in its entirety but we intend to emphasise that at least some evidence has been adduced on behalf of the Appellant whereas no evidence, worth the name, has been adduced on behalf of the Defendants-Respondents. D.W. 1, as noticed hereinbefore, having born in 1954, could not have any personal knowledge either in regard to the transaction or in regard to the management of the property by Suprovabala whatsoever. She was even only four years old when the name of all co-sharers was mutated in the records of the Calcutta Municipal Corporation. She, however, admitted that there are two other houses standing in the name of Dr. Ghosh. She even could not say anything about the power-of-attorney. She accepted that the suit house was in the name of Suprovabala till 1958. She accepted that her father objected to the mutation but the same was granted and no further step had been taken. Although she claimed that she had been looking after the affairs, she could not give any details about the purported litigations as against the tenants initiated by her father.
Burden of proof as regards the benami nature of transaction was also on the Respondent. This aspect of the matter has been considered by this Court in Valliammal (D.) by L.Rs. v. Subramaniam and Ors.[2004 (8) TMI 725 - SUPREME COURT].
It is well-settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original Plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the Plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the Plaintiff to examine the relevant witnesses completely demolishes his case.
Thus, the impugned judgment cannot be sustained which is set aside accordingly. The judgment of the trial court is restored. The appeal is allowed.
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2007 (4) TMI 751 - KARNATAKA HIGH COURT
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... ... ..... tegorically would say that except deduction as provided u/s.6B no further deduction is permissible in law. In fact, in the case on hand, the petitioner wants certain other items which are not included in Rule 6 is to be considered for the purpose of total turnover. All the three authorities noticing the section and also the case laws have rightly in our view have taken a view against the assessee. 8. Two Judgments are relied upon by the assessee, namely A.V.Fernandez Vs. The State of Kerala in 1957(8) STC 561 and B.P.Automobiles Vs. State of Karnataka in 55 STC 93. Both these Judgments on facts stand on a different footing in the light of the Rules and the Statute which govern total turnover in a case like this. These two Judgments are therefore not available to the assessee in these cases. 9. We do not find any justifiable grounds available for the assessee for consideration. Petition stands rejected. The order is up held. Questions of law are answered against the assesses.
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2007 (4) TMI 750 - DELHI HIGH COURT
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... ... ..... e question of condensation of delay in filing the 'Leave to Defend' had not arisen at all. A similar approach was pursued in Pleasant Securities and Finance Ltd. v. NRI Financial Services Limited AIR 2000 Delhi 245 . 17. For these reasons the Appeal succeeds. The Order of the learned Single Judge is set aside on the grounds that the provisions of A and C Act pertaining to service of the Award on the party has not been complied with. The result is that time for filing of the Objections has not commenced to run. Therefore, the question of delay had not arisen, so as to warrant the application of Popular Construction. The effect will be that OMP 261/2004 shall now be decided on its merits in accordance with law. is 8040/1004 shall stand disposed of as infructuous. EFA(OS) 9/2005 also stands allowed. Impugned Order dated 9-12-2004 is set aside. Ex. P. 4/2004 would be decided simultaneously with or Along with OMP 261/2004 18. The parties shall bear their respective costs.
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2007 (4) TMI 749 - SUPREME COURT
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... ... ..... therwise, the Court had framed an issue and arrived at a positive finding that the appellant herein did not pay the said sum of ₹ 15,000/- in favour of the plaintiff Nos. 1 to 3. The High Court has also affirmed the said finding. The High Court, therefore, cannot be said to have committed any error whatsoever in arriving at the finding that by reason of the said purported deed of family settlement, the co-owners had not partitioned the joint family property by meets and bounds. The plaintiffs/respondents were thus, yet to relinquish their rights in the joint family properties by receiving the said amount of ₹ 15,000/-. Deed of family settlement had not been given its full effect to. 11. We agree with the High Court that even on that count, the plaintiff's suit should have been decreed. We, therefore, do not find any merit in this appeal which is dismissed accordingly. However, in the facts and circumstances of the case, the parties shall bear their own costs.
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2007 (4) TMI 748 - BOMBAY HIGH COURT
Suit for recovery - Order XXXVII of Code of Civil Procedure, 1908 - Inconsistencies or conflicts in judgments of learned Single Judges and of the Division Benches - Whether a suit based on a writing or a receipt or an acknowledgement of liability, or honoured cheque or a settled account is maintainable as a summary suit - Order XXXVII, Rule 2 (Summary Suit), in cases where the Suit is based: i) On a settled account duly confirmed by the Defendants; ii) On a settled account which is not confirmed by the Defendants; iii) On an acknowledgment of liability; iv) On honoured cheque; and v) On a mere writing or a receipt;
HELD THAT:- We must note that there must be the following requirements before a summary suit would lie: (1) There must be a concluded contract; (2) The contract must be in writing; (3) The contract must contain an express or implied promise to pay.
There is no dispute in respect of the first two predicates. The only issue is in respect of the third predicate. As we have noted, we are not concerned here with an implied contract, but an implied term in a written contract. The Defendants would be right to contend that an implied contract is not a written contract. Is a summary suit maintainable on an implied term in a written contract with an implied term to pay.
We have noted that the expression "implied" term is used in different senses. In some contract it would not depend on actual intention of the parties, but on a rule of law, such as the terms, warranties or conditions, which if not expressly excluded the law imports, as for instance under the Sale of Goods Act, Marine Insurance Act, Master and Servant and Landlord and Tenant. To imply a term in the contract as implied term in our opinion the test laid down by Kim Lewison in 'Interpretation of Contract" would be relevant. At the same time the Court would have to note that the general presumption is, however, against the implying of terms into a written contract. It is, therefore, again not possible to lay down a general Rule as to when an implied term in a contract can be the subject matter of a summary suit. The issue before us is limited to an implied promise to pay. That would necessarily depend on the facts of each case. The two issues as formulated may now be answered.
In so far as the 'settled account is concerned,' it is no doubt true as noticed by the learned single Judge, that the various judgments adverted to, for holding that the summary suit would lie on a settled account, either of the Privy Council or of the Supreme Court did not arise from suits filed as summary suits. However, after the judgment of the Privy Council (Elvira L. Rodrigues) Sequeira, which has been considered by the Supreme Court in Hiralal & Ors. [1953 (3) TMI 36 - SUPREME COURT], a summary suit on a settled account, duly confirmed by the Defendant is maintainable as it is an acknowledgement by the Defendant in the ledger in which mutual accounts have been entered and the accounts settled between them. Such settling of accounts gives rise to a written contract on a fresh cause of action, with an implied promise to pay the amount settled. A summary suit would therefore lie on 'Settled accounts duly confirmed by the defendants. Issue (1) is answered accordingly.
In so far as acknowledgements writing or receipt are concerned, considering the various judgments adverted to earlier on behalf of the plaintiffs and Defendants and the discussion, it is not possible to lay down any precise test as to when a Summary Suit would lie on an acknowledgement writing or receipt. That would depend firstly on the document itself, the practice, usage and customs of the trade as also the facts of each case.
By so holding it is not as if the Defendant is denuded of his defences when he applies for leave to defend. The Supreme Court in Machalec Engineering and Manufacturers v. Basic Equipment Corporation [1976 (11) TMI 194 - SUPREME COURT] has laid down the tests, which thereafter have been reiterated by the Supreme Court in Sunil Enterprises v. S.B.I. Commercial and International Bank Ltd. [1998 (4) TMI 556 - SUPREME COURT]. The tests laid down are as under:
(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts may be sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiffs claim the Court may impose conditions at the time of granting leave to defend the conditions being as to time of trial or mode of trial but not as to payment in to Court or furnishing security.
(d) If the defendant has no defence, or if the defence is sham or illusory or practically moon-shine, the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory or sham or practically moon-shine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured.
Thus, the issues referred to us are accordingly answered. The Registry to place the matters before the Learned Bench assigned to hear the matters - In the circumstances of the case there shall be no orders as to costs.
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2007 (4) TMI 747 - BOMBAY HIGH COURT
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... ... ..... us does not fall within the parameters of section 10 of the Act. It is expected of the respondents to act judiciously when it passes orders or take action, which would directly impinge upon the right of even restricted freedom available to a citizen of this country under our Constitutional mandate. The authorities are expected not to act at their whim and fancies and even speak contrary to their own record. We have no doubt in our mind that the petitioner has been forced to approach the Court and litigate for all this time without any justifiable reasons. 13. For the reasons aforestated we find that the action of the respondents in not returning the passport of the petitioner is without any plausible cause or justification. It is patently an act of arbitrariness, which we hereby quash and set aside and direct issue of mandamus to the respondents to return the passport of the petitioner forthwith. Petition is allowed with costs, quantified at ₹ 2500/-. Petition allowed.
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2007 (4) TMI 746 - SUPREME COURT
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... ... ..... een 4.8 to 7.2 has to be absorbed by utilities/beneficiaries. In that view we would have to reject the argument on behalf of the learned counsel for the appellants that we would have to search for any logic and hold that the full difference between the actual upswing and downswing point and 6% would be available for adjustment. It is not the task of this Court to find out or search for the wisdom of legislature. We are concerned with the interpretation only. For the same reasons we cannot accept the argument that the word "adjust" should be read to mean "accommodate". There is no reason for doing so. We do not agree to hold that the literal interpretation would be illogical, unprincipled and impracticable as, in our opinion, the learned counsel have not been able to suggest so. We, therefore, fully agree with the order passed by the Appellate Authority and confirm the same. 22. In view of the above, the appeals are dismissed without any order as to costs.
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2007 (4) TMI 745 - CENTRAL INFORMATION COMMISSION
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... ... ..... held’ or ‘under the control of’ the public authority. It does not apply inferentially to the information not held or not under the control of the public authority having been brought into the public domain suo-motu in terms of sub-section 3 of Section 4. The price and the cost of access of information determined by the public authority applies to the latter category. As such, there is no inconsistency between the two provisions which are actually parallel and independent of each other. I therefore hold that no ground to annul the provision of pricing the information which the public authority in this case has done, exists. 16. In my considered view, therefore, the CPIO and the AA were acting in consonance with the provision of this Act when they called upon the appellant to access the information requested and not otherwise supplied to him by the CPIO, by paying the price / cost as determined by the public authority. 17. The appeal is consequently rejected.
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2007 (4) TMI 744 - MADRAS HIGH COURT
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... ... ..... 10 also stand on a similar footing like the petitioners herein and therefore, the proceedings initiated against them is also liable to be quashed. 16. For the aforesaid reasons, this Court is left with no other alternative except to quash the proceedings in C.C. No. 3022 of 2000 on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai, in respect of the petitioners herein and other Directors, viz., A3, A9 and A10, though they have not filed any separate quash petitions, with a view to expedite the trial in respect of the remaining accused. Accordingly, the same is quashed. The Criminal Original Petitions are allowed. Consequently, connected miscellaneous petitions are closed. 17. This Court is also constrained to direct the learned IX Metropolitan Magistrate, Saidapet to expedite the trial in C.C. No. 3022 of 2000 as the case itself relates to the year 2000 and more particularly, within a period of five months from the date of receipt of a copy of this order.
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