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Showing 41 to 60 of 724 Records
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2007 (4) TMI 743 - SUPREME COURT
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... ... ..... the word 'issued' when a disciplinary proceeding had been initiated by framing the chargesheet and the same had been despatched. Paragraph 2 of the circular letter in question was similar to the case of R.S. Sharma (supra). It is in that context, what would be the meaning of the word 'issued' when the decision has been taken to initiate disciplinary proceeding came up for consideration. As the circular contained a provision of that nature which is absent in the present case, the said decision, in our opinion, also has no application in the instant case. 14. For the self-same reasons, the decision of this Court in Kewal Kumar (supra) is also not attracted. This aspect of the matter has recently been considered in Coal India Ltd. and Ors. v. Saroj Kumar Mishra AIR 2007 SC 1706 . We, therefore, are of the opinion that there is no infirmity in the impugned judgments. Accordingly, the appeal is dismissed with costs. Counsel's fee assessed at ₹ 25,000/-.
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2007 (4) TMI 742 - DELHI HIGH COURT
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... ... ..... n the interest of justice, I hereby set aside the ex- parte order against the appellant subject to his furnishing bank guarantee to the extent of further 30 per cent of the decretal amount with the Trial Court. The said bank guarantee be deposited within a month. The parties are directed to appear before the Arbitrator on 30th May, 2007. The Arbitrator will give an opportunity of being heard to the appellant after satisfying that he has furnished the bank guarantee. The trial court is directed to issue a certificate in that context. The Arbitrator is further directed to dispose of the case within one month after receipt of the file. No further opportunity or notice be given to the appellant. Registry is directed to send the LCR to the court below and the Arbitrator will collect the record from the Trial Court itself or the High Court as the case may be. Copies of this judgment be given to the parties dusty. The appeal and the application stand disposed of in terms aforesaid.
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2007 (4) TMI 741 - SUPREME COURT
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... ... ..... entirely be obtained by personal obedience of the defendant. The relief of partition, accounting and declaration of invalidity of the sale executed in respect of immovable property situate in Village Pataudi, Gurgaon, could not entirely be obtained by a personal obedience to the decree by the defendants in the suit. We are in respectful agreement with the view expressed in the above decision. Applying the test laid down therein, it is clear that the present suit could not be brought within the purview of the proviso to Section 16 of the Code or entertained relying on Section 20 of the Code on the basis that three out of the five defendants are residing within the jurisdiction of the court at Delhi. 13. Thus, on the whole, we are satisfied that the trial court was right in returning the plaint to the plaintiff for being presented to the proper court. We therefore affirm the order returning the plaint and dismiss this appeal. In the circumstances, we make no order as to costs.
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2007 (4) TMI 740 - CESTAT, NEW DELHI.
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... ... ..... re entitled for benefit of notification. In these circumstances, we find that as the applicant produced invoices as well as certificate from M/s. BEML to show that the goods manufactured by the applicants were supplied to M/s. BEML and further used in the manufacture of goods which were supplied to the Min. of Defence. Therefore, the amount already deposited is sufficient for hearing of the appeal. Pre-deposit of remaining amount of duty and penalties are waived. 3. The evidence now produced by the applicant to show that M/s. BEML manufactured the goods by using the goods supplied by the applicant and the same further supplied to the Min. of Defence was not before the lower authorities and the same requires clarification. Therefore, the impugned order is set aside and the matter is remanded to the adjudicating authority for deciding afresh after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand. Order dictated in the open Court.
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2007 (4) TMI 739 - MUMBAI HIGH COURT
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... ... ..... e fails to understand why no reference is being made by the appellants to the charter party and the secondary evidence in that regard is sought to be relied upon without ascertaining as to whether the letter dated 1-8-1996 refers to the total quantity to be loaded in terms of the charter party document or not. The letter dated 1-8-1996 cannot replace the contents of the charter party document which is the best evidence which could reveal the total quantity of the molasses which was required to be loaded in the ship in terms of the agreement between the parties. Considering the same, no fault can be found with the finding arrived at by the arbitrator as well as the learned single Judge while dealing with the objections in that regard filed by the appellants. 23. For the reasons stated above, and as no other ground of challenge is canvassed, there is no case for interference in the impugned order and therefore the appeal fails and is hereby dismissed with no order as to costs.
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2007 (4) TMI 738 - SUPREME COURT
Claimed title on the basis of Adverse Possession - two different sale deeds - appellants herein purchased 2 acre 15 guntas and 3 acre guntas of land respectively, out of the said plot - Despite the fact that Nanjapa purchased a portion of the said plot, the appellants allegedly took over possession of the entire 5 acre 23 guntas of land after the aforementioned purchases - However, when allegedly their possession was sought to be disturbed by the respondent in the year 1988 - HELD THAT:- It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondent's transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellant's possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. .
As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This test forms the basis of decision in the instant case.
The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us hereto before.
Thus, there is no merit in this appeal which is dismissed accordingly with costs.
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2007 (4) TMI 737 - CALCUTTA HIGH COURT
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... ... ..... ent of the impugned cheques on the ground that there was no averment in the petition of complaint that he was also responsible for the day to day conduct of the business of the accused company. Said point should be treated as not decided by this Court. ' 14. Therefore, from my above discussion, I am of opinion that it is a fit case where the proceeding, as pending in the Court below, against the accused/petitioner should immediately be quashed and the accused should be discharged at once. 15. In the result, the revisional application is allowed on contest. The criminal proceeding being Complaint Case No. C/7143 of 2003, as pending in the Court of the learned 3rd Metropolitan Magistrate, Calcutta, against the petitioner Saroj Kumar Jhunjhunwala, stands quashed. He be discharged at once. Send a copy of this order to the learned Court below at once for information and necessary action. Urgent xerox certified copy of this order, be handed over to the parties, if applied for.
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2007 (4) TMI 736 - SUPREME COURT
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... ... ..... we grant milling permission only to Kumbhi Project. I.A. No.2 of 2007 is made absolute. However, Guleria Project shall be governed by the principles laid down in this judgment, as indicated above. TO SUM UP We hold that the Sugarcane (Control) (Amendment) Order, 2006 imposes a bar on the Subsequent IEM Holders in the matter of setting up of new sugar mills (factories) during the stipulated period given to the Earlier IEM Holders to take effective steps enumerated in Explanation 4 to Clause 6A of the Sugarcane (Control) (Amendment) Order, 2006 dated 10.11.2006. We further hold that the said 2006 Order operates retrospectively. We have cleared the Kumbhi Project. All other Projects falling in various writ petitions in the Allahabad High Court (Lucknow Bench) will be decided by the High Court in accordance with the principles laid down in this judgment. All civil appeals, transfer petitions and interlocutory applications accordingly stand disposed of with no order as to costs.
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2007 (4) TMI 735 - SUPREME COURT
Death of the injured - commission of an offence u/s 307/324 IPC - converted to one u/s 302 IPC - Application filed for summoning the appellant u/s 319 of the CrPC - witness's chief examination is only done - application u/s 319 CrPC dismissed at this stage - HELD THAT:- The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same.
It is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the CrPC, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside.
The appeal is allowed.
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2007 (4) TMI 734 - SUPREME COURT
Application seeking amendment under Order VI Rule 17 - Withdrawing admission made in written statement - Suit for partition and separate possession of the suit properties - Whether the High Court was justified in rejecting the application for amendment of the written statement? - HELD THAT:- Considering the facts, it was not a case of withdrawal of the admission by the appellants by making the application for the amendment of the written statement but in fact such admission was kept intact and only a proviso has been added. This, in our view, is permissible in law and the question of withdrawing the admission made in para 8 in its entirety in the facts as noted herein above, therefore, cannot arise at all.
Since we have already held that in the case of amendment of a written statement, the defendant is entitled to take new defence and also to plead inconsistent stand and in view of our discussions made herein above that by making the application for amendment of the written statement, admission was not at all withdrawn by the appellants nor a totally inconsistent plea was taken by the appellants in their application for amendment of the written statement, the High Court had failed to appreciate that by the proposed amendment, the appellants were not withdrawing their admission in respect of the half share in the ancestral property rather they only added that the plaintiff and defendant Nos. 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half share in the property of late Veersangayya. That apart, it appears from the record that the written statement filed by the appellants was before the death of defendant No. 1 (first wife of Appasao).
After the death of defendant No. 1, when plaintiff and defendant Nos. 2 to 8 claimed themselves as heirs and legal representatives of defendant No. 1, the appellants sought amendment of the written statement challenging the legitimacy of plaintiff and defendant Nos. 2 to 8. In view of the discussions made herein above, we do not think that it was impermissible in law for the appellants to seek amendment of the written statement in the manner it was sought for.
Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and defendant No. 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement.
Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of plaintiff and defendant Nos. 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao. Therefore, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement.
Thus, the appeal is allowed and the order of the High Court rejecting the prayer for amendment of the written statement is set aside. The application for amendment of the written statement thus stands allowed.
There will be no order as to costs.
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2007 (4) TMI 733 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... mission. It is true that the appellant is guilty only of lack of due diligence in the performance of its duties but that had serious consequences for some of the investors who have lost their money when they purchased the shares as stated above. To carry out due diligence is the primary responsibility of the merchant banker and since the appellant failed in discharging that duty, we are of the view that it deserves to be debarred from dealing in securities or in carrying out any activities relating to the capital market. The ends of justice, in our view, would be adequately met if the period of debarment is reduced from three years to six months. We order accordingly. We have reduced this period keeping in view the fact that there is no allegation that the appellant had colluded with the company in deliberately suppressing the true facts. The appeal is disposed of with a direction that the impugned order shall stand modified as sated above. There is no order as to the costs.
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2007 (4) TMI 732 - SUPREME COURT
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... ... ..... al in terms of Order 23 Rule 1(2), the trial court should have refused the application seeking liberty to file a new suit and it should have proceeded with the suit on merits. In view of the above judgments, the position in law is clear that when the court allows the suit to be withdrawn without liberty to file a fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the petitioners herein from taking the defence in the second round of litigation as held in the impugned judgment. The above judgments indicate that if the plaintiff withdraws the suit, the order of the court allowing such withdrawal does not constitute a decree under Section 2(2) of Code. That in any event, it will not preclude the petitioners herein (defendants in second round) from raising the plea that the sale deed executed by Chelliah Nadar on 26.2.73 in favour of Thangaraj Nadar was not true and valid. Thus, the civil appeal needs to be allowed.
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2007 (4) TMI 731 - CALCUTTA HIGH COURT
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... ... ..... result of the filing of the writ petitioners elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contest. 28. In the case of Morgan Stanley Mutual Fund v. Kartick Das the registered office of the company was located at Bombay, but by filing a petition in the District Consumer Redressal Forum, Calcutta, the petitioner got the company restrained from allotting shares. Vacating the interim order it was observed by the Apex Court that as far as India is concerned, the residence of the company is where the registered office is located. Normally, cases should be filed only where the registered office of the company is situated. 29. Therefore, when the present case comes under the purview of Clause (1), attracting the provision of Clause (2) of Article 226 obviously does not arise, and accordingly this Court, needless to mention, has territorial jurisdiction to entertain and dispose of the present writ petition.
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2007 (4) TMI 730 - SUPREME COURT
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... ... ..... upport of a proposition that it did not decide." Likewise, in the case of Arnit Das v. State of Bihar reported in (2000) 5 SCC488, this Court has observed as follows "When a particular point of law is not consciously determined by the Court, that does not form part of ratio decidendi and is not binding." Therefore, the judgment given in Mallick's case is not binding as it does not decide the law. It cannot be treated as binding precedent. As a result of our above discussion, we are of the opinion that the view taken in the present case (Sristidhar Biswas's case), relying on the judgments of Sirazul Haque Mallick and Dibakar Pal, cannot be upheld as the judgment given in Sirazul Haque Mallick's case was on concession and it was clearly mentioned that it shall not be treated as a precedent. Hence, we set aside the impugned order of the Division Bench dated 11.6.2004. The appeal filed by the appellants is allowed. There shall be no orders as to costs.
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2007 (4) TMI 729 - SUPREME COURT
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... ... ..... a Rao (1 supra) observed; "the above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 of Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law." In our view, on the admitted and indisputable facts set out above, any interference with the impugned order of the District Collector would result in restoration of orders passed earlier in favour of the appellants which are otherwise not in accordance with law. For all these reasons, we do not find any merit in the appeals. The appeals are accordingly dismissed. We make no order as to costs.
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2007 (4) TMI 728 - KARNATAKA HIGH COURT
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... ... ..... also seek an advance ruling from the competent authority an then the advance ruling can bot called in aid before the authorities under the Act the very ruling referred to and relied upon by the Petitioner. In fact the clarification of the commissioner Annexure-E is also in the case of some other assessee and not even an advance ruling issued by the competent authority and quashing this clarification while can get some relied to that assessee cannot have any effect on the assessment of the petitioner. 7. Ms Niloufer Akber, leanred Additional Government Advocate, on whom an advance copy of the petition was served, submits that the petitioner should avail of the statutory remedy and cannot bypass the same. 8. There is nothing special which warrants interference by this court. Learned Government Advocate is right in the said submission. 9. In the result this writ petition is rejected reserving liberty to the petitioner to avail such other remedies as the available to it in law.
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2007 (4) TMI 727 - SC ORDER
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... ... ..... . S. Ganesh, Sr. Adv., Mr. Amar Dave, Adv., Mr. Mahesh Agarwal, Adv., Mr.Rishi Agrawala, Adv., Mr. Gaurav Goel, Adv., Mr.Varun Mathur, Adv., Mr. H.A. Raichura,Adv. O R D E R Heard. The special leave petition is dismissed.
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2007 (4) TMI 726 - SUPREME COURT
Challenge to the words "and certified by the Central Board of Film Certification" in Regulation 10(d) and (e) - (i) Whether restricting the entry, for National Film Awards, to only films certified by the Central Board of Film Certification, is an unreasonable restriction on the fundamental right of film makers, violative of Article 19(1)(a) of the Constitution - HELD THAT:- . The government is not interested in evaluating or giving an award to a film which may never be seen by the public, or at all events never be seen in an 'uncensored' form. Its object is to select the best from among those which the public can see and enjoy or gain knowledge. The said policy neither relates to nor interferes with the right of a film maker either to make films, or to apply for certificate or to exhibit the films. There is nothing illogical, unreasonable or arbitrary about a policy to select only the best from among films certified for public exhibition. We cannot, in judicial review, change that policy by requiring the Government to select the best from among 'films made' instead of 'films made and certified for public exhibition'. We, therefore, hold that the requirement that films should have been certified by the Central Board of Film Certification between 1.1.2005 and 31.12.2005 for entry for the 53rd National Film Awards is not an unreasonable restriction of any fundamental right of the respondents or other film makers.
(ii) Whether the Directorate, having permitted entry of films in an uncensored format for awards in Non-Commercial Film Festivals, should do so in respect of National Film Awards also - HELD THAT:- When the purpose and object of Film Festivals and National Film Awards are completely different, the conditions that are made applicable, or the exemptions that are granted, in respect of Film Festivals, cannot automatically be applied to National Film Awards. The two being unequal and dissimilar, the question of applying the same standards or norms does not arise. Nor can application of different norms to Film Festivals and National Film Awards, lead to a complaint of discrimination. Applying different yardsticks to different events, to achieve different objects cannot be considered as discriminatory.
(iii) Whether exempting films made by Film Institutes and films entered by Doordarshan from the requirement of certification by the Board, while requiring certification by the Board in the case of others, is discriminatory, violating Article 14 of the Constitution - HELD THAT:- In this case, we have already found that the NFA policy restricting the entry to only films certified by the Board is valid and does not violate Article 19(1)(a). It therefore follows that a film maker does not have any right to claim that he is entitled to enter his films without certification by the Board. When a film maker complains of discrimination on the ground that films made by Film Institutes and films entered by Doordarshan have been exempted from the requirement of certification, and claims similar exemption, the question that requires examination is whether the exemption that has been granted to Film Institutes and Doordarshan is legal. If it is illegal, he cannot claim a similar illegal exemption in his favour.
CONCLUSION - A film-maker can challenge an illegal exemption in favour of Film Institutes and Doordarshan under clauses (f) and (g) of Regulation 10, but cannot claim a similar exemption by placing reliance on such illegality. Therefore the challenge to the words "and certified by the Central Board of Film Certification" in Regulation 10(d) and (e) has no merit. The respondents have not challenged the validity of Regulation 10(f) and (g) granting exemption to films made by Film Institutes or films entered by Doordarshan. Therefore, no relief can be granted to respondents in that behalf.
Thus, we allow the appeal in part and set aside the Judgment of the High Court except the direction to permit entry of non- feature films in digital format.
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2007 (4) TMI 725 - ITAT DELHI
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... ... ..... lindly and mechanically without regard to the particular facts and circumstances of a given case. What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process. The question must be viewed in the larger context of business necessity or expediency. 61. In view of the above discussion, the amount paid to Eicher was essentially revenue expenditure in so far as same was spent for improving the working of the company's staff, thereby facilitating the assessee's trading operation while leaving the fixed capital untouched. The CIT(Appeals) has correctly allowed the same. No interference is required. 62. In the net result, appeal of the revenue is dismissed whereas the appeal of the assessee is allowed in part in terms as indicated hereinabove.
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2007 (4) TMI 724 - SUPREME COURT
Quashing the order of detention - delay in disposing of the writ petition filed by the detenu - Powers conferred under sub-section (3) of Section 3 of the National Security Act, 1980 ('Act’) r/w Home Department’s Order - infringement of public order - - HELD THAT:- The representation is to be considered in its right perspective keeping in view the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law.
In the result, the High Court’s impugned order is clearly indefensible and is set aside - Appeal is allowed.
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