|
Advanced Search Options
Case Laws
Showing 61 to 80 of 888 Records
-
2009 (8) TMI 1232 - DELHI HIGH COURT
... ...
... ... ..... ile interpreting a clause couched in similar terms this Court said (SCC p.952, para 23) ‟23. ... It has been repeatedly held that such a clause is not hit by Section 28 of the Contract act...‟ Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause." In the light of the fact that Food Corpn. Case has been considered in Sujir Nayak case, no further argument remains in the present matter, as Clause 6(ii) and Condition 19 are, in their essence, pari material." 9. In view of the above legal position upheld by Supreme Court recently, I consider that the Clause 6(b)(ii) was binding between the parties and the respondent's claim raised after 12 months of the final amount he received under the settlement was not entertainable and could not have been considered by the Arbitrator. The award of the Arbitrator is liable to be set aside on this sole ground. I, therefore, hereby set aside the award.
-
2009 (8) TMI 1231 - DELHI HIGH COURT
... ...
... ... ..... . The end result of the above discussion is that the case set up by the prosecution against accused Sripal Singh, Rakesh Kumar and Satender Kumar fails. CONCLUSION 414. The end result of the journey undertaken by us is that the appeals filed by Sharda Jain and her brother Raj Kumar i.e. Crl.A.No.51/2007, criminal appeal filed by Roshan Singh i.e. Crl.A.No.139/2007 and criminal appeal filed by Rajinder i.e. Crl.A.No.144/2007 are dismissed. Criminal appeals filed by Pushpinder, Nirvikar, Rakesh Kumar, Sripal Singh Raghav and Satender Kumar i.e. Crl.A.No.19/2007, Crl.A.No.121/2007 and Crl.A.No.65/2007 are allowed. Pushpinder, Nirvikar, Rakesh Kumar, Sripal Singh Raghav and Satender Kumar are acquitted of the charges framed against them. Such of the accused who are in custody and whose appeals are allowed are directed to be set free unless required in custody in some other case. Such accused who have been acquitted and are on bail, we discharge their bail bonds and surety bonds.
-
2009 (8) TMI 1230 - ALLAHABAD HIGH COURT
... ...
... ... ..... petitioner. A bare perusal of the record clearly indicates that there was absolutely no material on record to show that any proceeding under section 21 of the Act are warranted as far as any transaction in U.P. is concerned. Therefore, notices issued under section 21 of the Act for reassessment pertaining to U.P. cannot be sustained. 23. In view of the aforesaid discussions writ petitions are partly allowed and the notices for reassessment dated 24-2-2006 (Annexure- 9 to the writ petition) issued by respondent no.3 to the petitioners for the assessment year 1999-2000 with regard to U.P. are hereby quashed and the notices issued for reassessment under the Central Sales Tax Act are upheld. 24. Before parting with the judgement it is made clear that the respondents will not be influenced by any of the observations made in this judgement. It will be independent exercise of the concerned authority to pass appropriate order under section 21 of the U.P.Act, in accordance with law.
-
2009 (8) TMI 1229 - SUPREME COURT
Medical Negligence - death of Anuradha by Doctors' rash and negligent act amounting to culpable homicide by advising, prescribing and treating the deceased with steroid drugs - Offence punishable u/s 304 A - Whether the treatment of Anuradha was in accordance with the medical protocol - Kunal and Anuradha came on a vacation to Calcutta on 1st April, 1998, principally to attend a wedding in the family. Anuradha supposedly, after eating some Chinese food in some restaurant, developed fever and skin rash on or about 25.4.1998. Respondent No. 1, Dr. Sukumar Mukherjee, indisputably is a very reputed Physician. Anuradha and Kunal were advised to consult him. She was diagnosed to be suffering from `Anglo-Neurotic Oedema with allergic vasculitis'. Respondent No. 1 prescribed Depomedrol stat (immediately) injection 80 mg. on a twice daily schedule(B.I.D) for 3 days to be followed by other oral steroids. One injection was given by him. She, however, breathed her last on 28th May, 1998.
Deceased (Anuradha), it is conceded, was suffering from TEN. She had been positively diagnosed to be suffering from the said disease on 12th May, 1998. TEN is a spectrum of symptoms. The treatment protocol for TEN has undergone considerable change throughout the world.
HELD THAT:- In our opinion, the answer must be rendered in the negative. Those who support use and administration of steroid do so with note of caution. They in no uncertain terms state that the same should be used at a preliminary stage. Respondents do not spell out as to what would be the preliminary stage. The preliminary stage must have started with the onset of the disease. She had been suffering from skin rash from 3rd week of April, 1998. It increased with the passage of time. The cause of such eruption was not ascertained. In fact what caused the onset of disease was not known. It may be from Chinese food or it may even be from use of vitamin.
No doctor posed unto themselves a basic question why despite use of steroid, condition of the patient was going from bad to worse. It is agreed across the board and at least during trial, that supportive treatment should have been given. The medicine was propagated which did not exist. The medical literatures were not consulted. Even for pulse therapy Depomedrol could not have been used and only Solumedrol could have been used. Kunal in his evidence explained the difference between the two. Dr. Mukherjee in his deposition indirectly accepted the same. Each of those pro-steroid group spoke of a single injection.
Nobody suggested on the face of the voluminous medical literature and authoritative opinions of the experts that two injections daily could be prescribed by any prudent physician. A great deed of confusion was sought to be created between one kind of steroid and another. Vague questions were asked from the experts to show that steroids may be used but Dr. Pasricha stated that only a quick acting steroid should be used. Depomedrol is not a quick acting steroid.
As noticed hereinbefore, precautions as also the course of actions suggested by the authors have not been undertaken by the respondents. It is to be noted that the learned authors' expertise in the field is neither in doubt nor in dispute, particularly when both parties have extensively relied thereupon.
Even the suspected offending drug was not withdrawn at later stages. This drug is considered to be a real risk for the patient suffering from TEN. The medicine has also been administered having regard to the physical condition of the patient. They were required to be given only as a part of the total program. We may also place on record that there has been a cleavage of opinion in regard to mortality rate. Whereas according to the one group of experts in TEN patients when properly treated and in particular given supportive treatment, the mortality rate is 0-10%' the respondents contend that that in fact the mortality rate is quite high being 30-70%.
We would assume that the mortality rate is very high. If that be so, we feel that the doctors should have been more careful. They should have treated the patient upon exercise of more care and caution. For the said purpose, if they had not been able to diagnose the disease properly or identify the proper drug they would have undertaken some research. It is clear that they did not have any expertise in the field and therefore they ought not to have behaved as experts
We are, therefore, of the opinion that the universally accepted medicated treatment protocol had also not been followed.
It is also to be noted at this juncture, that there may well be a difference of opinion on the course of action to be adopted while treating a patient of TEN, but the treatment line followed by Dr. Mukherjee which entailed administration of 80 mg of Depomedrol injection twice is not supported by any school of thought. The treatment line, in this case, does not flow from any considered affinity to a particular school of thought, but out of sheer ignorance of basic hazards relating to use of steroids as also lack of judgment.
RIGHT OF THE PATIENT TO BE INFORMED - The patients by and large are ignorant about the disease or side or adverse affect of a medicine. Ordinarily the patients are to be informed about the admitted risk, if any. If some medicine has some adverse affect or some reaction is anticipated, he should be informed thereabout. It was not done in the instant case.
CONTRIBUTORY NEGLIGENCE - To conclude, it will be pertinent to note that even if we agree that there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the defendants. In spite of a possibility of him playing an over-anxious role during the medical proceedings, the breach of duty to take basic standard of medical care on the part of defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages.
NON-JOINDER OF NECESSARY PARTIES - We must bear in mind that negligence is attributed when existing facilities are not availed of. Medical negligence cannot be attributed for not rendering a facility which was not available.
In our opinion, if hospitals knowingly fail to provide some amenities that are fundamental for the patients, it would certainly amount to medical malpractice. As it has been held in Smt. Savita Garg [2004 (10) TMI 637 - SUPREME COURT], that a hospital not having basic facilities like oxygen cylinders would not be excusable. Therein this Court has opined that even the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents. The aforementioned principle applies to this case also in so far as it answers the contentions raised before us that the three senior doctors did not charge any professional fees.
In any event, keeping in view of the said decision, we are of the firm opinion that notices to a large number of persons and withdrawal of cases against some of them by itself cannot be considered to be a relevant factor for dismissal of these appeals.
CIVIL LIABILITY UNDER TORT LAW AS ALSO UNDER CONSUMER PROTECTION ACT - It is noteworthy that standard of proof as also culpability requirements u/s 304A of IPC stands on an altogether different footing. On comparison of the provisions of Penal Code with the thresholds under the Tort Law or the Consumer Protection Act, a foundational principle that the attributes of care and negligence are not similar under civil and Criminal branches of Medical Negligence law is borne out. An act which may constitute negligence or even rashness under torts may not amount to same u/s 304A.
INDIVIDUAL LIABILITY OF THE DOCTORS - . After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified the previous prescription that has been given to the patient. On 12th May, 1998 although `depomedrol' was stopped, Dr. Halder did not take any remedial measures against the excessive amount of `depomedrol' that was already stuck in the patient's body and added more fuel to the fire by prescribing a quick acting steroid `Prednisolone' at 40mg three times daily, which is an excessive dose, considering the fact that a huge amount of "Depomedrol" has been already accumulated in the body.
After coming to know that the patient is suffering from TEN, Dr. Abani Roy Chowdhury ought to have ensured that supportive therapy had been given. He had treated the patient along with Dr. Halder and failed to provide any supportive therapy or advise for providing IV fluids or other supplements that is a necessity for the patient who was critically ill.
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts, viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
CONCLUSION - We remit the case back to the Commission only for the purpose of determination of quantum of compensation. The principles of determining compensation are well-known. We may place on record a few of them.
Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be worked out. Every housewife makes contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband's income, etc.
This Court, we may notice, has laid down certain norms for grant of compensation for the death of members of family including the loss of child in some of its decisions. [See Lata Wadhwa v. State of Bihar [2001 (8) TMI 1444 - SUPREME COURT] and R.K. Malik and Anr. v. Kiran Pal and Ors.[2009 (5) TMI 1006 - SUPREME COURT]]
The Commission must, therefore, while arriving at the adequate compensation bear in mind all these relevant facts and circumstances.
The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high degree. A negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
In the instant case, negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondent. In such a scenario finding of medical negligence u/s 304A cannot be objectively determined.
In view of our discussions made hereinbefore, we are of the opinion that for the death of Anuradha although Dr. Mukherjee, Dr. Halder, Dr. Abani Roy Chowdhury, AMRI, Dr. B. Prasad were negligent, the extent thereof and keeping in view our observations made hereinbefore, it cannot be said that they should be held guilty for commission of an offence u/s 304A of the IPC. We furthermore in a case of this nature do not intend to exercise our discretionary jurisdiction under Article 136 of the Constitution of India having regard to the fact that a judgment of acquittal has been recorded by the Calcutta High Court.
Further the statement made by the High Court that the transfer certificate was forged by the patient party is absolutely erroneous, as Dr. Anil Kumar Gupta deposed before the trial court that he saw the transfer certificate at AMRI's office and the words "for better treatment" were written by Dr. Balaram Prasad in his presence and these words were written by Dr. Prasad, who told it would be easier for them to transport the patient.
In a case of this nature, Kunal would have expected sympathy and not a spate of irresponsible accusation from the High Court.
For the reasons aforementioned, the criminal appeals are dismissed. As regards the civil appeal, the matter is remitted to the National Commission for determining the compensation with a request to dispose of the matter as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this judgment. civil Appeal is disposed of accordingly.
We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of ₹ 5,00,000/- and ₹ 1,00,000/- would payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of respondents.
-
2009 (8) TMI 1228 - COMPANY LAW BOARD CHENNAI
... ...
... ... ..... e person claiming to be a Member is entered in the Register of Members, it could not be said that he enjoys the powers of a Member conferred on the Members of a company. In the light of the above judgement and the factual position, the Petitioners have not proved their shareholding in the Company as per the mandatory requirements of Section 399 of the- Act, not having been satisfied by the Petitioners. The Petition is not maintainable and this Bench does not have powers to deal with the nature of complaints made in the Petition and the Company Petition stands dismissed as not maintainable. 57. Issue No.(g) The Petitioners not being the shareholders in terms of Section 399 of the Act as on the date of Petition, and are not entitled for any relief and failed to accounts. In view of the above, the Company Petition is liable to be dismissed. No order as to costs. All the applications pending as on the date stand disposed of and all the interim order as on the date stand vacated.
-
2009 (8) TMI 1227 - DELHI HIGH COURT
Annual Report and audited accounts revealed that they were "grossly inaccurate and/or lacking in several material particulars" and "do not reflect a true and fair view of the Company's affairs - Violation of the provisions of the Companies Act, 1956 (Act) - Provisions of the Listing Agreement with the Bombay Stock Exchange (BSE) and the Company's own Code of Business Conduct and Ethics" - constituted "unjust and unlawful acts - likely to "cause irreparable harm and injury not only to the Plaintiff but also to over one lakh other shareholders of the Defendant No.1 company"- Application Seeking rejection of the plaint under Order 6 Rule 11 r/w Section 151 CPC - The plaintiff H.B. Stockholdings Limited (HBSL) claims to hold 24.8% of expanded issued and paid-up capital of DCM Shriram Industries Limited (DSIL), Defendant No. 1 and thereby being its single largest shareholder.
Implied or express bar u/s 9, CPC - Whether there is any implied or express bar to the maintainability of the suit? - Section 9 of the CPC, states that the civil court shall have jurisdiction to try all suits of a civil nature "excepting suits of which their cognizance is either expressly or impliedly barred.
HELD THAT:- For the purpose of examining the above question, the court is accepting as correct the averments in the plaint as originally filed. For the sake of completeness, although the application for amendment has not yet been allowed, this court has also kept in purview the plaint as sought to be amended. The amendments, if allowed, would add to the prayers in the suit to seek a declaration that the resolutions passed at the AGM/Poll held on 25th September 2008/26th September 2008 would be null, void and non est. The amendment does not seek to delete the mandatory injunction originally sought directing the appointment of an independent Chartered Accountant to carry out a fresh audit of the books of account of DSIL. Further the prayer of removal of the auditor (Defendant No.14) as auditor of DSIL and directing the appointment of another auditor in place thereof also remains. In effect, the suit even after the proposed amendments continues to be one seeking the relief of declaration and consequential injunction.
Emphasizing that the powers of the Court were wide, given the object that is sought to be achieved by the exercise of such power u/s 397 and 398, it was explained that Clauses (a) to (g) of Section 402 "indicate the widest amplitude of the court's power".
The wide nature of the powers under the Act has been explained recently by the Supreme Court in Kamal Kumar Dutta v. Ruby General Hospital Limited [2006 (8) TMI 313 - SUPREME COURT]. It was observed in the context of Sections 397 and 398 that "the Act is a complete code". Likewise, the ld Single Judge in Anil Gupta v. J.K. Gupta [2001 (11) TMI 913 - HIGH COURT OF PUNJAB AND HARYANA] held that the jurisdiction of the civil court was impliedly barred in relation to the question of oppression or mismanagement. The aggrieved persons could certainly approach the CLB. Notice was taken of the judgment of the Supreme Court in Ammonia Supplies Corporation (P) Limited v. Modern Plastic Containers Pvt. Limited AIR [1998 (9) TMI 427 - SUPREME COURT.
Applying the ratio of Ammonia Supplies Corporation (P) Limited to the instant case (supra), it requires to be noticed that the claim made in the suit does not contain any aspect which cannot be adjudicated by the CLB. U/s 402 (g), the power of the CLB would include the passing of an order which may provide for "any other matter for which in the opinion of the Tribunal it is just and equitable that provision should be made." the power of the CLB would include the passing of an order which may provide for "any other matter for which in the opinion of the Tribunal it is just and equitable that provision should be made." U/s 398 (1), the scope of the power of the CLB is to determine whether "the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company".
A perusal of the application filed on 28th February 2008 would show that the very averments made in the plaint, i.e out about the investments in DSIL and in DHL and other facts set out in the plaint have been included in the application before the CLB. It is not, therefore, possible to accept the plea of the learned Senior counsel for the plaintiff that what constitute the subject matter of the suit is different and distinct from what is being presently agitated before the CLB.
Likewise u/s 397, it is called upon to adjudicate on whether the affairs are being conducted "in a manner oppressive to any member or members". Further, both u/s's 397(2) and 398 (2), the CLB may "with a view to bringing to an end the matters complained of, make such order as it thinks fit." The inevitable conclusion is that the jurisdiction of the civil court is impliedly barred.
A perusal of the application filed on 28th February 2008 would show that the very averments made in the plaint, i.e out about the investments in DSIL and in DHL and other facts set out in the plaint have been included in the application before the CLB. It is not, therefore, possible to accept the plea of the learned Senior counsel for the Plaintiff that what constitute the subject matter of the suit is different and distinct from what is being presently agitated before the CLB.
To this Court, it appears that the facts of the present case are different inasmuch as the plaintiff here has already approached two other fora namely the CLB with a petition u/s 397 and 398 as well as the SEBI and SAT. This is, therefore, not a case where the plaintiff first sought remedy before a civil court.
Here the Doctrine of election would apply. If the plaintiff chooses to enforce its right first before the CLB, can it then be permitted to also approach the civil court particularly when CLB refuses interim relief? Such a question was never considered in CDS Financial Services (Mauritius) Limited. This Court is therefore unable to accept the arguments of Mr. Haksar that notwithstanding the availability of a remedy before the CLB, this Court should entertain the present suit.
Having carefully examined the plaint as well as the averments made in the petition before the CLB, as further sought to be amended by the subsequent application, it appears to this Court that the grounds on which the relief is being sought for are more or less similar to what has been sought in the CLB. In the considered view of this Court, therefore, the answer to the question first posed is that there is an implied bar to this Court entertaining the present suit.
Although the learned Senior counsel for the Plaintiff may be right in his contention that the suit is itself not barred u/s 41 (h) SRA, the fact remains that the suit is reduced to one seeking a bare declaration if the consequential prayers for injunction are barred since they have already been sought in other earlier proceedings before the CLB and SAT. Such a suit for a bare declaration (which in any event is not the form of prayer even after the proposed amendments) would be barred expressly by Section 34 SRA.
For the above reasons, the application is allowed. The plaint is rejected. Consequently, the suit is dismissed with costs. The other pending applications are also dismissed.
-
2009 (8) TMI 1226 - SUPREME COURT
... ...
... ... ..... onsider sub-section (1) along with the other provisions in Chapter II and III, the object and intent of the Legislature is that this provision i.e. Section 81(1) is to be strictly adhered to and complied with. 20) In view of the endorsement by the Registrar (Judicial) on 07.07.2008 that the election petition was presented only by an advocate and not by the election petitioners, we accept the reasoning of the High Court in dismissing the election petition. We further hold that as per sub- section (1) of Section 81, election petition is to be presented by any candidate or elector relating to the election personally to the authorized officer of the High Court and failure to adhere such course would be contrary to the said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation. Since, the High Court has correctly dismissed the election petition, the civil appeal fails and the same is dismissed with no order as to costs.
-
2009 (8) TMI 1225 - DELHI HIGH COURT
... ...
... ... ..... aised by him in the suit. 5. Learned Counsel for the respondent has, however, submitted that the application under Section 9 of the Act having been decided on merits, there is no need for any clarification as sought by the appellant's counsel while withdrawing the appeal. 6. Indeed the learned Single Judge in the impugned judgment dated 25th March, 2009 has observed as follows This however, would not preclude petitioner from seeking remedies against respondents under appropriate law. 7. We are of the view that the learned Single Judge himself gave an observation in favour of the appellant permitting them to seek remedies against the respondents under appropriate law. It is also evident that the observations and findings were made by the learned Single Judge only in the context of the maintainability of the application under Section 9 of the Act. 8. The appeal is accordingly dismissed as withdrawn and stands disposed of. The pending application stands disposed of as well.
-
2009 (8) TMI 1224 - MADRAS HIGH COURT
Property pending the winding up proceedings - Company application seeking a direction to execute and register a sale deed - agreement entered into between the parties - Whether Transfer of property effected six months prior to the presentation of the winding up proceedings fraudulent transfer? Whether agreement for sale does not by itself create any interest in or charge on the immovable property covered under the agreement for sale - Sale agreement was entered into on 17.2.2000 itself; that the company petition was filed on 2.7.2001, and thus the agreement was entered into one year and four months before the presentation of the winding up proceedings as contemplated u/s.441 of the Companies Act; that under such circumstances, at no stretch of imagination, it could be called as a fraudulent transfer; that even the ld Single Judge has not determined a question as to whether there was any collusion or not; but has raised the question as to whether the transaction was a fraudulent preference or not; that in the instant case, all would clearly indicate that there was no fraudulent preference at all; and that the ld Single Judge has erred in coming to the conclusion that it was a fraudulent preference.
Appellant had no knowledge about the financial crisis or crunch of Kothari Orient Finance Limited at the relevant time; that apart from this, so long as it is not a fraudulent preference, it cannot be stated that it was intended to defeat the interest of the depositors; that in the case on hand, it cannot in any way affect the interest of the depositors since the company is having all assets both movable and immovable which were very well available; that under the circumstances, it cannot be termed as fraudulent preference, and hence the order of the ld Single Judge has got to be set aside and a direction be issued for registration of the sale deed.
HELD THAT:- The entire case of the appellant rests on the agreement dated 17.2.2000, which was executed by the Director of Kothari Orient Finance Limited on the one side and the appellant bank on the other whereby consideration was fixed at ₹ 105 lakhs, and a letter dated 6.11.2000, on which date the possession of the property was handed over along with the documents of title. At this juncture it would be more apt and appropriate to look into the alleged agreement for sale.
There was no need for making such a clause in the agreement as if the balance of consideration of ₹ 64 lakhs was liable to be paid by the appellant to Kothari Orient Finance Limited, company under winding up, who was actually under financial crisis. The ld Senior Counsel for the appellant brought to the notice of the Court that even this ₹ 41 lakhs of advance had not gone to the company, and out of this amount, ₹ 25 lakhs the major part, had actually gone to the Directors and not to the Company.
The Director of the company under winding up has agreed to deliver the original title deeds and also the vacant possession of the property only at the time of the registration of the sale deed to the purchaser. In the instant case, it is contended that on 6.11.2000, the possession of the property was handed over with all the documents of title. Thus it would clearly indicate the intention of the management of the company under winding up to make an unjust and preferential treatment in favour of the appellant.
It is clear that if any transfer of property is effected six months prior to the presentation of the winding up proceedings, it cannot be termed as a fraudulent transfer. In the instant case, what was available in the hands of the appellant was only an agreement for sale dated 17.2.2000. Under Sec.54 of the Transfer of Property Act, it would not clothe him any right or interest over the said property. So long as registration of sale deed is not done, it cannot be said to be a transfer of property in the eye of law.
Merely because the possession and the documents were handed over, it cannot also clothe him any right to have the benefit under Sec.531 of the Companies Act. Had it been true that the handing over of documents and possession was made on 6.11.2000, and a letter therefor was also made that day itself as contended by the appellant's side, the long and unexplained delay in filing the company petition could not have occasioned. Admittedly, the company petition was filed on 2.7.2001. This would be indicative of the fact that the said letter has been created pending the proceedings and also in order to avoid the transaction being called as a fraudulent preference.
The conduct of the parties would clearly indicate that in appraisement of the financial crisis, a resolution came to be passed by the board of directors authorising one of the directors who entered into an agreement for sale of the only one immovable property in favour of the appellant bank which, in the considered opinion of the Court, cannot but be termed as a fraudulent preference, and that too when there are number of banks and depositors in thousands to whom the company under winding up owed crores of money. This Court is unable to notice any infirmity either factually or legally, and hence the order of the learned Single Judge has got to be sustained.
In the result, this original side appeal is dismissed confirming the order of the ld Single Judge. The parties are directed to bear their costs.
-
2009 (8) TMI 1223 - SUPREME COURT
Challenging the order of High Court - the Validity and/ or legality of an order issuing a warrant against the appellant - Interpretation of the roles and responsibilities of the Central Bureau of Investigation (CBI) vis-`-vis the provisions of the Extradition Act, 1962 ("the Act") - Appellant and the respondent No. 6 are citizens of India. Appellant married the respondent No. 6 on 6.04.2002 at Mumbai. They moved to California on 19.04.2002 and stayed there till 2005. Out of the said wedlock, a daughter Eesha was born on 26.04.2003. Marital life of the Appellant and the Respondent No. 6 was however not happy. According to the respondent No. 6, she was continuously being harassed. She applied for grant of permanent asylum on 1.07.2003 allegedly under coercion from the appellant. Later on the respondent No. 6 allegedly moved to her sister's house at Sharon Massachusetts, USA.
PROCEEDINGS IN USA - She filed a complaint at Police Department on 26.04.2005. On or about 09.05.2005 an application before the Probate and Family Court of Massachusetts for grant of divorce was filed by her. In the said proceeding, she also sought for orders of custody of her daughter. A decree for divorce as also the custody of the child was passed by the Norfolk Country Probate and Family Court, Canton, Massachusetts on 2.5.2006.
PROCEEDINGS BEFORE THE FAMILY COURT - she filed an application for custody of the child before the Family Court at Mumbai on 11.05.2007. By an order dated 15.05.2007, the Family Court directed the appellant to remain present in the Court with Eesha. Pursuant to the said notice of the Family Court, his father appeared before the court on 15.05.2007 and stated that the appellant had gone out of Mumbai along with Eesha. The Family Court, thus issued a warrant of arrest against the appellant and directed grant of custody of the child to the Respondent No. 6.
Appellant indisputably preferred an appeal before the High Court which was marked as Family Court Appeal (Stamp) No. 11724 of 2007. An order of stay was granted by the High Court of Bombay in the matter, which is still operative.
PROCEEDINGS BEFORE THE HIGH COURT - The Atlanta City Police and the American Court in the meanwhile issued a warrant of arrest against the Appellant which was transmitted through INTERPOL to the Government of India. Appellant filed a writ petition questioning the legality and/ or validity of the said warrant, which by reason of the impugned judgment dated 11.08.2008 has been dismissed.
HELD THAT:- In view of the rival contentions of the parties, the following questions which arise for our consideration are:
(i) Whether having regard to the concept of sovereignty the Executive Government of India can enforce a warrant passed by the Probate and Family Court, Massachusetts?
(ii) Having regard to the provisions contained in Sections 44A and 13 of the Code of Civil Procedure, is the foreign judgment enforceable in India?
(iii) Whether the CBI established under the DPSE Act has the authority to deal with INTERPOL notices?
MATRIMONIAL DISPUTE AND THE COURT'S POWER OF REVIEW: The dispute between the appellant and the respondent No.6 essentially being a matrimonial dispute, is a private dispute. Criminal offences, if any, are sought to be made out relate to the violation of the Order of the Court which speaks of commission of an offence of forgery as well.
A `Yellow Corner Notice' is evidently used to trace missing minors. The Interpol issued a yellow or watch notice on 13.6.2007 in respect of Eesha, minor daughter of the respondent No. 6. It, however, issued a red or detain and arrest notice on 21.6.2007 to locate and arrest the Appellant. Pursuant thereto or in furtherance thereof, the Assistant Director, National Crimes Bureau (NCB) forwarded a letter dated 4.1.2008 received from the U.S. Embassy (Department of Justice) to the Mumbai Police to locate the appellant and his daughter on 14.01.2008. Appellant was located by Mumbai Police on 3.5.2008 and the said information was passed on to the U.S. Embassy on 9.5.2008.
The CBI has also filed its counter affidavit before this Court stating that the Indian Interpol Wing works as an interface between the Interpol Secretariat General, France, Interpol member countries and various law enforcement agencies of India. One of its functions is to circulate the Red Corner Notice as also Yellow Corner Notices issued by the Interpol Secretariat General at the behest of any member country within India.
Application of the provisions of the Act, thus, in a case of this nature must be held to be imperative in character. We have noticed hereinbefore that for the purpose of applying the provisions of the Act, existence of a treaty between the requesting State and the requested State plays an important role. It makes a distinction between an extraditable offence and other offences including political offences subject of course to the condition that offences relating to illegal tax are not to be treated to be a political offence. Sections 4-18 provides for the mode and manner in which a request for extradition of a person is required to be made by the concerned country. The requirements are specific in nature and are required to be accompanied by a large number of documents.
Such an arrest can be effected only pursuant to a warrant issued by the Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act. It is also not in doubt or dispute that in a case where there is no treaty, it is only the Magistrate who issues the warrant for arrest subject of course to the condition that the Central Government had ordered a Magisterial Inquiry in terms of Section 5 of the Act. Such an order of arrest, emanating from a Treaty -State, is also permissible under a `Provisional Warrant' issued by a Magistrate in exercise of its power under Section 16 of the Act, upon information that the fugitive should be apprehended subject to the condition that the detention thereunder may continue only for the time requisite for obtaining an endorsed warrant from the Central Government.
However, when a request for provisional arrest in terms of Article 12 is communicated, it must satisfy the requirement of Section 34B of the Act. Such request from a foreign country must be accompanied by the requisite documents and not a communication from INTERPOL alone. It will bear repetition to state that an arrest can be effected at the instance of the Central Government only when such a request is made by the foreign country and not otherwise. Respondent No.6 herself accepts that she had pursued only civil remedies and the order of the custody Court was passed under civil remedies. Section 29 of the Act as indicated hereinbefore provides for power of Central Government to discharge any fugitive criminal. If it has arrived at a conclusion that it is unjust or inexpedient to surrender or return the fugitive criminal.
India follows the doctrine of dualism and not monoism. We may, however, hasten to add that this Court, however, at times for the purpose of interpretation of statute has taken into consideration not only the treaties in which India is a party but also declarations, covenants and resolutions passed in different International Conferences. {See M/s Entertainment Network (India) Ltd. vs. M/s Super Cassettee Industries Ltd [2008 (5) TMI 671 - SUPREME COURT]. The Act as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive. But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail.
The power of the Central Government vis-`-vis State is in two categories - Keeping in view the Constitution of INTERPOL vis-`-vis the Resolutions adopted by the C.B.I. from time to time, although a Red Corner Notice per se does not give status of a warrant of arrest by a competent court. It is merely a request of the issuing authority to keep surveillance on him and provisionally or finally arrest the wanted person for extradition. The provisions of the Act and the Treaty are required to be given effect to. Whenever a request is received from INTERPOL the authority must act on behalf of the Central Government. The INTERPOL provides constitution of NCBs by Member States.
C.B.I. has different roles to play. When it acts as NCB, being a department of CBI, it acts under a Treaty. It acts in terms of the constitution of the INTERPOL. It acts as a authority of the Central Government. By reason of such an act it does not carry out investigation, although it is entitled therefor. It functions as an NCB which is to give effect to the request received from INTERPOL and/or foreign country. When it does so, indisputably it has to apply its mind. It can take any action only because it is lawful to do so. It does not exercise absolute discretion. It has to act if a case therefor has been made out including the question as whether any extraditable offence has been made out. For the aforementioned purpose it does not Act as an agency within the four corners of the DSPE Act. It acts, it will be a repetition to state, has an authority of the Central Government.
The limitation of its powers having regard to the provisions of Section 5 of DSPE Act as also some of the decisions of this Court, therefore, in our opinion, cannot be said to have any application in the facts and circumstances of this case.
C.B.I., therefore, is entitled to organize and coordinate in regard to the request made by INTERPOL. It may have to obtain endorsed warrant. It may have to give provisional warrant in terms of Section 34B of the Act.
CONCLUSION - We have already held above that the Municipal Laws of a country reign supreme in matters of Extradition. It is thus for the State concerned to take a decision in regard to such Notices, keeping in view the Municipal Laws of the country. The High Court was, therefore, in our opinion, clearly wrong in holding that a Red Corner Notice should not be tinkered with. When a person complains of a violation of his Fundamental Right and/or otherwise of his fundamental right he is entitled to the right of judicial review. It ought not to be forgotten here that the dispute between the Appellant and the Respondent No. 6, being essentially a Matrimonial dispute, is a private dispute and no criminal extraditable offence can be made out of the same, in the absence of a specific request for extradition.
The High Court, thus, in our opinion, committed a serious error insofar as it failed to take into consideration the provisions of the Act, in the absence of any request having being made by the Govt. of USA to the Executive Government of the Union of India or any authourization made by the latter on its behalf.
Furthermore, if a violation of any order passed by a civil court is made the ground for issuance of a Red Corner Notice, indisputably, the court will enquire as to whether the same has undergone the tests laid down under Sections 13 and 44A of the Code of Civil Procedure.
As regards the question of custody, we have, however noticed, hereinabove that although the family court at Bombay for all intent and purposes relying on or on the basis of the order passed by the Massachusetts Court directed custody of the girl in favour of her mother, the Bombay High Court has stayed the operation thereof. The Appellant therefore, must be held to be in lawful custody of his daughter unless any other or further order is passed by a court of competent jurisdiction.
Lastly, it is imperative to note that the State does not seek for enforcement of the custody and/ or restrain order passed by the Probate and Family Court, Massachusetts in view of the rigours contained in Sections 13 and 44A of the Code of Civil Procedure. Even the Family Court does not appear to have dealt with this aspect of the matter. In any event, as the matter is pending before the High Court, it alone will have a final say therein.
For the aforementioned reasons, the impugned judgment cannot be sustained. It 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.
-
2009 (8) TMI 1222 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
... ...
... ... ..... on aggrieved by an “order” made by the Board or by an adjudicating officer. Admittedly, the Board has not passed any order on the representation made by the appellant and such inaction on the part of the Board cannot be the subject matter of an appeal under section 15T of the Act. The remedy, if any, lies elsewhere. It is only against an order passed by the Board that an appeal lies and not against its inaction. Be that as it may, no prayer has been made in the memorandum of appeal for the issuance of a direction to the Board to consider the representation filed by the appellant. Not only this, the appellant has made no grievance in the memorandum of appeal that his representation has not been disposed off by the respondent Board. In this view of the matter, we cannot accept the contention made by the learned senior counsel for the appellant. In the result, the appeal fails and the same is dismissed as not maintainable leaving the parties to bear their own costs.
-
2009 (8) TMI 1221 - SUPREME COURT
... ...
... ... ..... ent scheme contemplates cessation of the relationship of master and servant. The rights and obligations of the parties thereto shall become enforceable only on completion of the contract. Unless such a stage is reached, no valid contract can be said to have come into force. Acceptance of an offer must, therefore, be communicated.” 20.We, therefore, are of the opinion that in a case of this nature, clause (5) of Regulation 29 would be attracted only in a case where the concerned employee has completed 20 years of qualifying service. Clause (5) of 29 would be applicable for the purpose of granting a higher monetary benefit in the matter of computation of pension. It does not provide for measurement of the period as was in the case of Indian Bank (supra). 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.
-
2009 (8) TMI 1220 - ALLAHABAD HIGH COURT
... ...
... ... ..... regarding limitation has been taken care of by this Court in the case of S.K.Traders (supra) and the directions and observations made by the Court in this behalf in the aforementioned case would also apply in the present case. 15- In view of the above, without entering into merit of the case the impugned order dated 25-4-2009 as well as notice dated 28-4-2009 are quashed and the respondent no.2 is directed to pass a fresh order after affording opportunity of hearing to the petitioner. 16- The respondent no.2 shall pass appropriate orders in accordance with law within a period of three months from the date of production of certified copy of this order after issuing proper notice to the petitioner to appear before him for the purposes of granting permission to respondent no.2 under section 21(2) of the Act. The petitioner is directed to file certified copy of this order within ten days from today. 17- In the result writ petition is allowed subject to the aforesaid observation.
-
2009 (8) TMI 1219 - ALLAHABAD HIGH COURT
... ...
... ... ..... No.1319 (Tax) of 2007 as well as in the connected writ petitions are hereby quashed. It is made clear that the orders passed by Additional Commissioner, Grade-1, Kanpur zone, Kanpur, respondent no.2 granting permission under Section 21(2) of the U.P.Act to the assessing authority to pass reassessment orders are sustained. The assessing authority, respondent no.3 shall pass a fresh order in accordance with law preferably within three months from the date of production of a certified copy of this order before it after affording opportunity of hearing to the petitioner. The petitioner undertake to file certified copy of this order within 20 days from today before respondent no.3. 26- In the result aforementioned writ petitions are allowed in part. 27- Before parting with the judgement it is made clear that the Court has not expressed any opinion on merit of the case and it will be independent exercise of the concerned authority to pass appropriate orders in accordance with law.
-
2009 (8) TMI 1218 - CALCUTTA HIGH COURT
... ...
... ... ..... was introduced with effect from November 4, 1999. Because the above notification was introduced for the purpose of substitution of earlier notifications. The word substitution would connote that the Central Government intended to give benefit of 0 duty of customs under EPCG Scheme from the date of introduction of the policy of the Central Government. 19. Consequent upon the above discussions and observations the impugned order dated July 30, 2003 stands quashed and set aside. The respondents are directed to give the benefit of 0 duty of customs under EPCG Scheme to the petitioner-company in respect of the import of textile machineries under reference within a period of two months. 20. This writ application is, thus, allowed. 21. There will be, however, no order as to costs. 22. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
-
2009 (8) TMI 1217 - GUJARAT HIGH COURT
... ...
... ... ..... of law 1. Whether on the facts and in the circumstances of the case, the Tribunal was right in law to exclude the excise duty at the time of valuing closing stock at the end of accounting ?” Post the matter along with Tax Appeal No.41/2008.
-
2009 (8) TMI 1216 - SC ORDER
... ...
... ... ..... am, JJ. ORDER Appeal dismissed.
-
2009 (8) TMI 1215 - DELHI HIGH COURT
... ...
... ... ..... d bogus share holders, whose names are given to the assessing officer, then the department is free to proceed to re-open their individual assessments in accordance with law, but it cannot be regarded as undisclosed income of the assessee company. 3. In the present case, in view of the aforesaid, the Tribunal has categorically mentioned in the aforesaid extracted portion that the department can initiate proceedings against Sh. P.K. Sharma. Thus, when the department is not remediless and the contentions of the assessee that these shares were purchased by Sh. P.K. Sharma and in that situation, additions should have been made in the hands of Sh. P.K. Sharma and not in the case of assessee, it would be open to the Revenue to initiate proceedings by treating the same under section 153(3) of the Act as income in the hands of Sh. P.K. Sharma, in accordance with law. 4. Subject to the aforesaid, no question of law arises in this appeal otherwise and the same is accordingly dismissed.
-
2009 (8) TMI 1214 - MADRAS HIGH COURT
... ...
... ... ..... ioner (Appeals) erred in holding that the ratio of the decision of this Tribunal in the case of Dujodwala Resin was applicable. Following the ratio of the decision of this Tribunal cited by the appellant, we hold that Modvat credit will be admissible to the asaessee on the inputs. In this view of the matter, the appeals are allowed. 6. We have gone through the decision referred to in the order dated 6-1-2000 and are of the opinion that the view taken by the Tribunal on the issue of respondent No. 1 entitlement to avail Modvat credit cannot be termed as erroneous and no referable question of law arises in the present case. 7. Hence, the petition is dismissed.” 8. We are in agreement with the view of the Punjab and Haryana High Court cited supra. In the light of that decision, end in the facts of the case, we find that no referable question of law arises in this case warranting a direction to the Tribunal for reference. The petition is dismissed. No costs.
-
2009 (8) TMI 1213 - DELHI HIGH COURT
... ...
... ... ..... rovides the best guide for determination of value of the import of goods but in the absence of evidence of contemporaneous import, reference to foreign journal for finding out correct international price of imported goods may not be irrelevant because ultimately the Assessing Authority has to determine value of the imported goods, at which such goods are sold or offered for sale in the course of international trade at the time of importation.” 2. The said observations of the Supreme Court will be equally applicable to the facts of the present case. The writ petition is accordingly disposed of in terms of the aforesaid directions. It will be always open to the petitioner to rely upon evidence and material with them before the Assessing Authority in support of the valuation disclosed in the Bill of Entry. In case the petitioner is aggrieved by the Assessing Authority’s order, he will be entitled to ventilate his grievance in accordance with law. 3. Dasti.
........
|
