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Showing 61 to 80 of 868 Records
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2009 (4) TMI 1004 - SC ORDER
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... ... ..... am, JJ. ORDER Appeal dismissed.
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2009 (4) TMI 1003 - COMPANY LAW BOARD, CHENNAI
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... ... ..... f extraordinary general meeting purportedly to have been held on March 12, 2007, wherein the alleged resolution for removal of the petitioner as director has been passed or annexed/produced From No. 32 showing the cessation of the petitioner as director from the board which should/could have been filed with the Registrar of Companies. This Bench has ascertained from the Registrar of Companies, Karnataka, Bangalore and it is found that no Form No. 32 has been filed till April 16, 2009, removing the petitioner as a director of the company. Hence, this Bench presumes that the petitioner continues to be a director of the company. 45. The other allegations made by the petitioner have not been proved with any documentary evidence and hence, I do not find any merit to be interfered with. With the above directions, the company petition is disposed of. No order as to costs. Any interim orders as on date stands vacated and any other applications pending as on date, stands disposed of.
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2009 (4) TMI 1002 - DELHI HIGH COURT
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... ... ..... 08 of the Division Bench is made absolute during the pendency of the suit subject to (i) the plaintiffs within 45 days here from depositing in this Court the sum of ₹ 75 lacs with interest at 3 per month thereon from the date of payment thereof by the defendants to the plaintiffs and till the date of deposit (ii) the plaintiffs No. 1 & 9 filing an undertaking to this Court in the form of an affidavit, within 15 days herefrom undertaking to without any trial make good to the defendants the loss if any suffered by the defendants owing to the interim order aforesaid, calculated on the difference between the sale price of the said share as on 11th July, 2008 and on the date of final decision of the suit and within 45 days thereof and subject to any orders by the Appellate court. 21. The Registry is directed to keep the monies so deposited by the plaintiffs in this Court in fixed deposit for one year at a time and to be renewed from time to time till otherwise directed.
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2009 (4) TMI 1001 - SUPREME COURT
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... ... ..... erence made under Section 31(4) of the Act. 19. Under the agreement, respondent has chosen Mumbai as the port of delivery and the vessel carrying the Rock Phosphate was delivered at the port of Bombay. Therefore it cannot be denied that Bombay High Court had the jurisdiction in the Arbitration Petition filed before it, as the goods were delivered at the Port of Bombay. 20. Therefore, the High Court of Bombay, in our view, is not correct in rejecting the Arbitration Petition on the ground of lack of jurisdiction. 21. In view of the above discussion, the appeal is allowed. The impugned order passed by the High Court is set aside. The application filed under Section 28 of the Arbitration Act, 1940 for extension of time for making the Award is restored on the Board of the Bombay High Court. The court is requested to consider the application on merits as early as possible at any rate within an outer limit of six months from the date of receipt of the orders. No order as to costs.
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2009 (4) TMI 1000 - GUJARAT HIGH COURT
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... ... ..... e are not prepared to accept the contention that conditions imposed in the second and third proviso to Section 18(1) of the Securitization Act are onerous in nature so as to make the right of appeal illusory. Delhi High Court in R.V. Saxena's case (supra) also upheld the validity of Second Proviso to Section 18(1) of the Securitization Act with which we fully concur. 6. We have also not come across any provision in the Statute, enabling the secured creditor to adjust or appropriate the amount deposited by the borrower to prefer an appeal under Section 18(1) of the Act. On dismissal of the appeal the amount deposited as a pre-condition for filing the appeal will be refunded to the appellant and therefore, he is no way prejudiced. We therefore, find no merit in the contention raised by the petitioner that the second proviso to Section 18(1) of the Act is discriminatory or violative of Article 14 of the Constitution of India. Petitions lack merit and the same are dismissed.
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2009 (4) TMI 999 - SUPREME COURT
Conspiracy in defrauding the bank - falsification of accounts and forgery of records - Commission of offences u/s 120-B/ 420/467/468 and 471 of the IPC - officers of the Bank had also been prosecuted u/s 13(2) r/w Section 13(1)(d) of the Prevention and Corruption Act, 1988 - Application of the provisions of Section 320 of the Code - Debt recovery Tribunal, appellant and the Bank had entered into a settlement for recovery of loan - C.B.I. had returned the title deeds in respect of the property which were kept as security for obtaining the loan from the bank - Appellant filed an application u/s 239 of the Code for discharge - Before HC, it was argued that further continuation of the criminal proceeding, despite repayment of the amount of loan by the appellant, would amount to an abuse of the process of Court and the same should, therefore, be quashed - CBI contended that the criminal case against the appellant was started not only for obtaining loan but also on the ground of criminal conspiracy with the bank officials - HC dismissed the revision application by the appellant.
HELD THAT:- It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously. Bank is entitled to recover the amount of loan given to the debtor. If in connection with obtaining the said loan, criminal offences have been committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable. When a settlement is arrived at by and between the creditor and the debtor, the offence committed as such does not come to an end.
The judgment in the civil proceedings will be admissibile in evidence only for a limited purpose. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the FIR having been investigated by the CBI, the bank could not have entered into any settlement at all. The CBI has not filed any application for withdrawal of the case. Not only a charge sheet has been filed, charges have also been framed. At the stage of framing charge, the appellant filed an application for discharge.
One of the main accused is the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.
The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction u/s 482 of the Code of Criminal procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge.
Therefore, we find no merit in the appeal. It is dismissed accordingly.
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2009 (4) TMI 998 - BOMBAY HIGH COURT
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... ... ..... rrectness of the order as such. The phrase 'matter' would cover application, proceedings recorded after granting reasonable opportunity to the parties of being heard and the order passed by the appropriate government as well. The order would form part of relevant record to be looked into by the Industrial Tribunal. However, the Industrial Tribunal would have to come to its own conclusions while satisfying itself as to the existence of the parameters specified by the Legislature in section 25-O (2 ). Answer to Question No. 4 ( 71. ) The jurisdiction of the Industrial Tribunal is not that of a Court sitting in appeal over the order passed by the appropriate Government under section 25-O (2 ). The Tribunal has a wide jurisdiction wherein it has to permit the parties to raise their claims in relation to the application for closure, to lead evidence if necessary, hear them and pass an award in accordance with law as contemplated under section 25-O (5 ). Order accordingly.
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2009 (4) TMI 997 - SUPREME COURT
Settlement of disputes by arbitration - Application u/s 20 r/w section 8 for filing the arbitration agreement into court and seeking appointment of an arbitrator - legal misconduct on the part of the arbitrator in making the award - error apparent on the face of the award - pendente lite interest - The contractor's stand was that in the absence of an extension of time for completion by mutual consent before the stipulated date for completion, it was not liable to continue the work on the tendered rates.
HELD THAT- It was well settled that under the Arbitration Act, 1940, an award was not open to challenge on the ground that the arbitrator has reached a wrong conclusion or failed to appreciate facts, as under the law, the arbitrator is made the final arbiter of the dispute between the parties.
When there is no allegation of moral misconduct against the arbitrator with reference to the award, and where the arbitration has not been superseded, there were only two grounds of attack. First was that there was legal misconduct on the part of the arbitrator in making the award. Second was that there was an error apparent on the face of the award.
Keeping the said principles in mind let us examine the various claims.
Loss of profitability due to late release of mobilization advance - HELD THAT:- The Arbitrator committed a legal misconduct by ignoring the terms of contract, that is the agreement dated 11.1.1989,which specifically provided that in addition to the CTR, the work order and amendment to work order dated 8.11.1988 would also form part of the contract. The Arbitrator also overlooked the fact that additional provision regarding mobilization advance was introduced in the agreement itself. Therefore the mobilisation advance was governed by the terms in the CTR, the work order, the amendment to the work order dated 8.11.1988 and agreement dated 11.1.1989 read together. If so read, it was clear that there was no breach on the part of the employer and the contractor was itself responsible for the delay. If so, the question of compensating the contractor on that score does not arise.
There is yet another aspect. The contractor claimed compensation on the basis that he could not do work of the value in view of the delay and he was entitled to 15% as compensation. But the arbitrator made an award in respect of the claim on the ground that there was delay in releasing the mobilization advance and during that period of delay, one third of the contract work could have been done and the value of the work that could have been done and 10% thereof was the loss of profit.
Firstly, there was no such plea. Secondly, we have already held that the delay relating to mobilisation advance, was not on the part of the employer. Thirdly, even if there was delay, it was nobody's case that no work was done or that the contractor had suffered loss for non-execution of the work during the contract period. Therefore we are of the view that the award of compensation towards Loss of profitability due to late release of mobilization advance is liable to be set aside.
Idle charges for machinery, staff etc. - HELD THAT:- The amounts that allegedly became due to the contractor under the award were mostly towards damages and escalation in prices validity of which were under challenge and there was no provision in the contract for payment of interest thereon. As noticed above at best the arbitrator could have directed return of the documents of title to the contractor and could not have directed payment of damages at the rate of ₹ 12072/- per day - We therefore hold that viewed from any angle, awarding ₹ 12,072/- per day as damages, from the date of award under Claim 37A cannot be sustained and the same is liable to be set aside.
Interest (pre-reference, pendent lite and future) Contractor claimed pre-reference interest at 18% per annum on all its claims from the date of claim to date of arbitrator entering upon the reference (18.6.1990 to 15.12.1991), as also pendente lite interest from 16.12.1991 to 21.9.1994 and future interest from the date of award till date of payment or decree whichever was earlier - HELD THAT:- This Court has held that in the absence of an express bar, the arbitrator has the jurisdiction and authority to award interest for all the three periods - pre reference, pendente lite and future (vide decisions of Constitution Bench in Secretary, Irrigation Department, Government of Orissa vs. G. C. Roy [1991 (12) TMI 268 - SUPREME COURT], Executive Engineer, Dhenkanal Minor Irrigation Division vs. N. C. Budharaj [2001 (1) TMI 916 - SUPREME COURT] and the subsequent decision in Bhagawati Oxygen vs. Hindustan Copper Ltd. [2005 (4) TMI 611 - SUPREME COURT]. In this case as there was no express bar in the contract in regard to interest, the Arbitrator could award interest.
Rate of interest - We are of the view that the award of interest at 18% per annum, in an award governed by the old Act (Arbitration Act, 1940), was an error apparent on the face of the award. In regard to award of interest governed by the Interest Act, 1978, the rate of interest could not exceed the current rate of interest which means the highest of the maximum rates at which interest may be paid on different classes of deposits by different classes of scheduled banks in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act.
Therefore, we are of the view that pre-reference interest should be only at the rate of 9% per annum. It is appropriate to award the same rate of interest even by way of pendente lite interest and future interest upto date of payment.
Payment for work done by the contractor - release/refund of amounts withheld or excess deductions - escalation in prices - compensation for slow progress due to reduction of width of trench - HELD THAT:- The arbitrator has awarded certain amounts against these claims by examining the material placed before him and the terms of contract. He has also assigned reasons for awarding the amount against these claims. Courts can not sit in judgment over the award of the arbitrator, nor re-appreciate the evidence - The awards on these claims do not suffer from any infirmity which can be the basis for interference either u/s 30 or u/s 16 of the Arbitration Act, 1940. Neither want of jurisdiction, nor legal misconduct, nor any inconsistency nor error apparent on the face of the award are made out in regard to awards made in regard to these claims. The awards in regard to these claims are therefore upheld.
Appeal allowed in part.
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2009 (4) TMI 996 - SUPREME COURT
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... ... ..... l existing government and private schools shall install fire extinguishing equipments within a period of six months. (iii) The school buildings be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely. (iv) Evaluation of structural aspect of the school may be carried out periodically. We direct that the concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction in duty must attract immediate disciplinary action against the concerned officials. (v) Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments. 41. The Education Secretaries of each State and Union Territories are directed to file an affidavit of compliance of this order within one month after installation of fire extinguishing equipments. 42. List this petition on 07.12.2009 to ensure compliance of this order.
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2009 (4) TMI 995 - ITAT MUMBAI
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... ... ..... n is not taxable under the Act. It is also further noticed that the AO should have passed the order within six-months under the provisions of s. 154 (8) and if it is not passed it should have been deemed to have been accepted. Further, the assessee has also furnished an order under s. 154 passed for the asst. yr. 2006-07 wherein the claim of commission made in the return was not allowed for want of supporting documents and after furnishing the same the AO has allowed the claim in asst. yr. 2006-07. Considering these facts and the law on the subject, we set aside the orders of the AO and the learned CIT(A) in this regard and allow the grounds of the assessee. We restore the matter back to the AO with a direction to examine the claim and exclude the amount of long-term capital gain which is not taxable according to the provisions of the Act. Needless to say that the assessee should be given an opportunity before passing the order under s. 154. 7. In the result, appeal allowed.
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2009 (4) TMI 994 - BOMBAY HIGH COURT
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... ... ..... ection is only recorded for being rejected. 13. In the result, I answer the substantial questions of law herein below - (a) Both the Courts below have committed an error of law in holding that the Defendant No.1 Tarabai became absolute owner of the suit plot by virtue of her valid nomination made by her husband Shivram under Section 30 of the Maharashtra Co-operative Societies Act, 1960 r/w Rule 25 of the Rules, to the exclusion of other heirs of the deceased; and (b) Section 30 of the Maharashtra Co-operative Societies Act, 1960 does not provide for a special rule of succession altering the rule of succession laid down under the personal law. 14. In the result, the Second Appeal is allowed. The judgment and decree passed by the Trial Court in Special Civil Suit No.42/1981 dated 11.08.1980 confirmed by the District Judge in Regular Civil Appeal No.772/1984 vide judgment dated 12.03.1986 stands set aside. The plaintiff' s suit is dismissed, however, no orders as to costs.
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2009 (4) TMI 993 - SC ORDER
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... ... ..... am, JJ. ORDER Appeal dismissed.
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2009 (4) TMI 992 - SUPREME COURT
Law relating to the admissibility of a judgment in a criminal proceedings vis-‘-vis the civil proceedings and vice-versa governed by the provisions of the Indian Evidence Act - Whether the admission of guilt in a criminal case would be admissible in evidence in civil case - Period of limitation for institution of a suit for recovery of `pledged ornaments' - Appellant is a money lender - A criminal case for charging excess interest was instituted against him - he pleaded guilty by reason whereof a fine of ₹ 150/- was imposed on him - Respondent served a notice - As neither the said noticed was replied to nor the jewellery was returned, he filed the suit.
HC opined that the suit had been filed within the prescribed period of limitation having been brought within a period of three years from the date of refusal of the demand to return the pledged ornaments. the admission of guilt in a criminal case would be admissible in evidence being relevant to the fact in issue.
HELD THAT:- A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an embargo in relation thereto. A decision in a criminal case is not binding on a civil court.
In M.S. Sheriff & Anr. v. State of Madras & Ors.[1954 (3) TMI 76 - SUPREME COURT], a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence.
In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment.
If a primacy is given to a criminal proceeding, indisputably, the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of the evidence brought in the criminal proceeding.
It is now almost well-settled that, save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41, and 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit.
We, therefore, are of the opinion that although the judgment in a criminal case was not relevant in evidence for the purpose of proving his civil liability, his admission in the civil suit was admissible. The question as to whether the explanation offered by him should be accepted or not is a matter which would fall within the realm of appreciation of evidence. The Trial Court had accepted the same. The first appellate court refused to consider the effect thereof in its proper perspective. The appellate court proceeded on the basis that as the judgment of the criminal court was not admissible in evidence, the suit could not have been decreed on the said basis. For the said purpose, the admission made by the appellant in his deposition as also the effect of charge had not been taken into consideration.
We, therefore, are of the opinion that the High Court cannot be said to have committed any error in interfering with the judgment of the first appellate court.
Applicability of the period of limitation - Article 70 of the Limitation Act would be applicable - period of limitation, thus, begins to run from the date of refusal after demand. Appellant did not respond to the notice issued by the respondent asking him to return the pledged jewellery. The date of receipt of such a notice is 14.05.1998. The suit having been filed on 26.06.1998, thus, must be held to have been filed within the prescribed period of limitation.
Having regard to the fact that the averments contained in the plaint were not traversed, the same would be deemed to have been admitted by him in terms of Order VIII, Rule 5 of the Code of Civil Procedure. Gautam Sarup v. Leela Jetly [2008 (3) TMI 681 - SUPREME COURT], this Court held:
"14. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore."
Therefore, there is no merit in this appeal, which is dismissed accordingly.
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2009 (4) TMI 991 - HIGH COURT OF DELHI
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... ... ..... C), Pradeshiya Industrial & Investment Corporation of Uttar Pradesh v. North India Petro-Chemical Limited & Ann relied upon oy the respondent, have no application to the present case. ( 14. ) In view of the above, the petition is admitted. Citation be published in the "Statesman" (English edition) and "Jansatta" (Hindi edition) in accordance with Company (Court) Rules, 1959. However, publication of the citation and appointment of the provisional liquidator is deferred and one opportunity is given to the respondent company to pay the amount found already due and payable to the petitioner with interest at the rate of 8 per annum with effect from 1st October, 2007 when the legal notice was served on the respondent company. The amount be paid within one month failing which the petitioner shall be entitled to publish the citation and apply for appointment of the provisional liquidator. List for further directions on 20th of May, 2009. Petition allowed.
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2009 (4) TMI 990 - CESTAT NEW DELHI
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... ... ..... n categories of institutional customers on the basis of certificates produced by the applicants). On perusal of the conditions of the notification and perusal of the finding of the Commissioner and the submissions made by the learned Advocate, we are of the view that the applicant may not be eligible for concessional rate of duty in respect of supplies made to individual customers where RSP is required to be mentioned in the bags. Therefore, we direct the applicant to deposit the entire amount of disputed duty amounting to ₹ 7,72,521/- within 4 weeks from today and to report compliance on 25.5.09. 3. Learned Advocate submits across the bar that they have filed another appeal against the very same order on the ground that the said order cover issue arising out of two show cause notices even though there was only one order issued. Registry to return the second appeal to the party. 4. Stay petition is disposed of. This appeal shall be tagged to Appeal Nos. E/2316-2317/08.
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2009 (4) TMI 989 - BOMBAY HIGH COURT
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... ... ..... ections 80-1 and 80-1A of the Act? b). Whether the Tribunal’s conclusion based on arguments which were neither taken by the Respondent No. 1 in the assessment order or by the Departmental Representative in the course of hearing nor brought to the notice of the Appellant by the Tribunal is in gross violation of the principles of natural justice?
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2009 (4) TMI 988 - SC ORDER
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... ... ..... , JJ. ORDER Appeal dismissed.
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2009 (4) TMI 987 - SC ORDER
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... ... ..... am, JJ. ORDER Appeal dismissed.
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2009 (4) TMI 986 - SUPREME COURT
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... ... ..... f the Tribunal.” In that case, the State had accepted the judgment of the High Court. A mistake on the part of the State to issue the impugned direction was in question therein. It was in that context the aforementioned observations had been made. Therein 19 posts were to be filled up whereas a direction was issued only to fill up ten posts. The Tribunal directed the State to fill up all 19 posts. The State of Andhra Pradesh did not question the order of the Tribunal. Even the Commission was not required to carry out any fresh exercise to comply with the direction of the Tribunal. As the order of the Tribunal was not found to be unjustified, the High Court refused to interfere therewith. The observations were made only in the aforementioned context. 44. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2009 (4) TMI 985 - GUJARAT HIGH COURT
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... ... ..... hieving synergic advantages. 3. It has been pointed out that all the equity shareholders of the applicant company have given their written consent on oath, approving the scheme of arrangement. The said consents are annexed as Annex. 'D' to the application. Further, it is submitted there are no secured creditors and all the unsecured creditors of the company have given their written consent on oath, approving the scheme of arrangement. The said consents are annexed as Annex. 'E' to the application. The certificates from the Chartered Accountant confirming the status of shareholders and creditors of the company as on date are collectively annexed as Annex. 'F'. 4. In view of this, the meetings of the equity shareholders and unsecured creditors of the applicant Company, as required to be held under provisions of Section 391(2) of the Companies Act, 1956 are not necessary to be held and are hereby dispensed with. 5. The application is hereby disposed off.
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