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2017 (5) TMI 771 - PUNJAB AND HARYANA HIGH COURT

2017 (5) TMI 771 - PUNJAB AND HARYANA HIGH COURT - TMI - Maintainability of petition - Vires of Section 19 of the MSME Development Act, 2006 - requirement of deposit of seventy-five per cent of the amount of award as a pre-condition for entertaining an application - case of petitioner is that the requirement of pre-deposit of seventy-five percent of the amount awarded as a pre- condition for entertaining the appeal is onerous and oppressive. It renders the remedy of appeal wholly illusory - Ld. .....

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appeal and cannot be considered to be unconstitutional - even in the absence of an express provision to that effect, the Appellate Authority or Tribunal would have power to grant stay as incidental or ancillary to its appellate jurisdiction subject to there being a strong prima facie case established to the satisfaction of the Appellate Authority that the very purpose of the appeal would be frustrated or rendered nugatory if such stay was not granted. - Section 19 of the 2006 Act applies to .....

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2006 Act, thus not being a stage of initial adjudication of the dispute consequent on a unilateral determination by one of the parties, unlike in the case of the Section 17(2) under the 2002 Act. - The condition incorporated in Section 19 of the 2006 Act that no application for setting aside any decree, award or other order shall be entertained by any Court unless the appellant (not being a supplier) has deposited seventy- five percent of the amount in terms of the decree, award etc. is arbi .....

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on and intendment and in the interest of justice. This power was not to be exercised in routine but only on a strong prima facie case being made out and the first appellate authority being satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the condition of pre-deposit to continue as a condition precedent to the hearing of the appeal before it. - While upholding the validity of Section 19 of the 2006 Act, it has to be held that the requirement .....

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J. For The Appellants : Mr.Kanwaljit Singh, Sr.Advocate with Mr.Parunjeet Singh, Advocate For The Petitioners : Mr.Gaurav Sharma, Advocate, Mr.Krishan K.Chahal, Advocate, Ms.Munisha Gandhi, Addl.A.G., Punjab with Ms.Harleen Kaur, AAG, Punjab, Mr.Tribhawan Singla, Advocate, Mr Manuj Chadha, Advocate, And Mr. Aakash Singla, Advocate HARINDER SINGH SIDHU, J. 1. This judgment shall dispose of four cases i.e. CWP Nos.23368 and 19236 of 2015, LPA No.1556 of 2015 and CWP No.19099 of 2016, as similar is .....

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nterprises Facilitation Council (for short 'the Council'), is onerous, oppressive and arbitrary. 3. The petitioner is a partnership firm dealing in the business of supply and fixing of electrical equipment for Electricity Boards of Punjab and other States. 4. Respondent No.3 filed a claim petition against the petitioners before the Council constituted under the 2006 Act for an amount of Rs. 1,37,71,374/- being interest on account of delayed payments in respect of various purchase orders .....

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the award being illegal and void. The writ petition was disposed of vide order dated 28.9.2015 holding that the petitioners had an alternative remedy to challenge the award before the Civil Court in terms of Section 19 of the 2006 Act. Moreover, as per Section 19 of the 2006 Act, no application for setting aside any decree, award or other order made by the Council could be entertained without prior deposit of seventy-five per cent of the decretal amount, which had not been done. Accordingly, the .....

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ve filed C.M. No.146 of 2017, wherein, it has been stated that after the filing of this petition, they had filed the application (Annexure A-1) before the Additional District Judge, Patiala for setting aside the award dated 30.9.2014. The respondent filed objection petition regarding the maintainability of the application on account of nondeposit of seventy five per cent of the amount awarded. Vide order dated 21.12.2016 (Annexure A-4) the Additional District Judge, Patiala allowed the objection .....

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, (2004) 4 SCC 311, where Hon'ble the Supreme Court had declared Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 2002 Act ) to be arbitrary and unconstitutional. As per Section 17(2) of the 2002 Act no appeal could be entertained before the Debt Recovery Tribunal unless the borrower had deposited seventy-five per cent of the amount claimed in the notice under Section 13(2) thereof. 9. Ld. Counsel for the res .....

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cing the competitiveness of small and medium enterprises and seeks to- xxxxxxxx (f) make provisions for ensuring timely and smooth flow of credit to small and medium enterprises to minimise the incidence of sickness among and enhancing the competitiveness of such enterprises, in accordance with the guidelines or instructions of the Reserve Bank of India. xxxxxxxxxx (k) make further improvements in the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 and .....

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n and flow of money to micro, small and medium supplier within a fixed time frame. 10. He argued that Section 19 of the 2006 Act has been interpreted by Hon'ble the Supreme Court in Goodyear India Ltd. v. Norton Intech Rubbers (P) Ltd., (2012) 6 SCC 345. In that case, the Hon'ble Supreme Court dismissed the Special Leave Petition against the order of the High Court, wherein, it had been held that on a plain reading of Section 19 of the 2006 Act, the Court had no discretion to either waiv .....

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institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the appellant (not being a supplier) has deposited with it seventy-five per cent of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such court : Provided that pending disposal of the application to set aside the decree, award or order, the court shall order that such percentage of th .....

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for consideration before the Courts on numerous occasions and it has been consistently held that as the right to appeal is a creature of the statute, it can be conditional or qualified. The requirement about the deposit of the amount claimed as a condition precedent to entertainment of an appeal does not nullify the right of appeal and cannot be considered to be unconstitutional. Simultaneously, it has been held that even in the absence of an express provision to that effect, the Appellate Autho .....

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(Civil) 559, where the validity of Section 62(5) of the Punjab Value Added Tax Act, 2005 (for short VAT Act ) which provided that no appeal shall be entertained, unless such appeal is accompanied by the proof of prior payment of twenty- five per cent of the total amount of tax, penalty and interest ordered to be paid in the order appealed against, was questioned. 15. Section 62 of the VAT Act, which was in issue in that case is reproduced below: 62. (1) An appeal against every original order pas .....

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ers of the Commissioner, to the Tribunal. (2) An order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Commissioner or any officer on whom the powers of the Commissioner are conferred, shall be further appealable to the Tribunal. (3) Every order of the Tribunal and subject only to such order, the order of the Commissioner or any officer exercising the powers of the Commissioner or the order of the Deputy Excise and Taxation Commissioner or of the designated officer, if it .....

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g heard to the parties, shall make an order - (a) affirming or amending or canceling the assessment or the order under appeal; or (b) may pass such order, as it deems to be just and proper. (7) The appellate authority shall pass a speaking order while deciding an appeal and send copies of the order to the appellant and the officer whose order was a subject matter of appeal. This Court framed the following questions for consideration: (a) Whether the State is empowered to enact Section 62(5) of t .....

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n, (2011) 14 SCC 160. 16. In P. Laxmi Devi's case, Hon'ble the Supreme Court upheld the validity of Section 47-A of the Stamp Act, 1899, introduced by the Indian Stamp Act (A.P. Amendment Act 8 of 1998), as per which, a party was required to deposit fifty per cent of the deficit stamp duty before a reference could be made to the Collector. The observations of Hon'ble the Supreme Court are as under: 22. In this connection we may also mention that just as the reference under Section 47 .....

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ustoms [(1988) 4 SCC 402] wherein this Court observed: (Vijay Prakash case [(1999) 4 SCC 468], SCC p. 406, para 9) 9. Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. 24. In Anant Mills Co. Ltd. v. State of Gujarat [(1975) 2 SCC 175] this Court held that the right of appeal .....

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d tax for the entertainment of the appeal. The Bombay High Court upheld the said provision and its judgment has been referred to with approval in the decision of this Court in Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad [AIR 1968 SC 623].. This Court has also referred to its decision in Shyam Kishore v. Municipal Corpn. of Delhi [(1993) 1 SCC 22] in which a similar provision was upheld. 26. It may be noted that in Gujarat Agro Industries Co. Ltd. v. Municipal Co .....

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nstitution. 27. In view of the above, we are clearly of the opinion that Section 47-A of the Stamp Act as amended by A.P. Act 8 of 1998 is constitutionally valid and the judgment of the High Court declaring it unconstitutional is not correct. 17. In Har Devi Asnani's case (supra), the constitutional validity of the proviso to Section 65(1) of the Rajasthan Stamp Act, 1998, which provided that no revision application shall be entertained unless it is accompanied by a satisfactory proof of the .....

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of Gujarat [(1975) 2 SCC 175], Vijay Prakash D. Mehta v. Collector of Customs [(1988) 4 SCC 402] and Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad [(1999) 4 SCC 468] in which this Court has taken a consistent view that the right of appeal or right of revision is not an absolute right and it is a statutory right which can be circumscribed by the conditions in the grant made by the statute. Following this consistent view of this Court, we hold that the proviso to S .....

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e conclusion is that right of appeal is a creature of a statute and it being a statutory right can be conditional or qualified. If the statute does not create any right of appeal, no appeal can be filed. Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. In other words, while .....

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d the right of the revenue to speedy recovery of the amount. The conditions imposed including prescription of a pre-deposit are meant to regulate the right of appeal and the same cannot be held to be violative of Article 14 of the Constitution of India unless demonstrated to be onerous or unreasonable. To put it differently, right of appeal being a statutory right, it is for the legislature to decide whether to make the right subject to any condition or not. In the light of the above enunciation .....

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t be negatived and such a provision cannot be said to be ultra vires Article 14 of the Constitution of India. The object of the provision is to keep in balance the right of appeal conferred upon a person aggrieved with a demand of tax and the right of the revenue to speedy recovery of the tax. It is, thus, concluded that the State is empowered to enact Section 62(5) of the Act and the said provision is legal and valid. The condition of 25% pre-deposit for hearing first appeal is not onerous, har .....

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right of appeal. This Court thus negatived the challenge to the constitutional validity of the requirement of pre-deposit before entertaining an appeal contained in Section 62(5) of the VAT Act. 19. The judgment in Mardia Chemicals Ltd.'s case (supra) relied on by Ld. Counsel for the petitioners is clearly distinguishable. In that case, Hon'ble the Supreme Court had concluded that the proceedings under Section 17(2) of the 2002 Act, though termed as appeal were in fact not so. Actually, .....

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ndition for filing an appeal/ revision, and not at the very first instance. It was observed as under:- 60. The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive, more particularly when the secured assets/the management thereof along with the right .....

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to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the authority concerned. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a r .....

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over and under control of the secured creditor, (iv) no special reason for double security in respect of an amount yet to be determined and settled, (v) 75% of the amount claimed by no means would be a meagre amount, and (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-sectio .....

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rt. 21. As per Section 15, the buyer is required to make payments in respect of supply of any goods or services on or before the date as agreed between him and the supplier in writing. In the absence of any agreement the payment is to be made before the appointed day, which is the day following immediately after the expiry of the period of forty-five days from the day of acceptance or the day of deemed acceptance. As per proviso to Section 15 in no case shall the period agreed upon between the s .....

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es for reference of any dispute with regard to the amount due to the Council. The Council shall initially conduct conciliation or make a reference to any institution or centre for conducting conciliation, which conciliation is to be as per the Arbitration and Conciliation Act, 1996 (for short 1996 Act ). Where such conciliation is unsuccessful, the Council shall either itself take up the dispute for arbitration or refer it to any institution or centre providing alternative dispute resolution ser .....

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being a supplier) has deposited with such Court seventy-five per cent of the amount in terms of the decree, award or the order. 24. The composition of the Council is specified in Section 21 as per which, the Council shall consist of not less than three but not more than five members from among different categories namely; (i) Director of Industries, or any other officer not below the rank of such Director, in the Department of the State Government having administrative control of the Small Scal .....

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re any supplier, supplies any goods or renders any services to any buyer, the buyer shall make payment therefor on or before the date agreed upon between him and the supplier in writing or, where there is no agreement in this behalf, before the appointed day: Provided that in no case the period agreed upon between the supplier and the buyer in writing shall exceed forty-five days from the day of acceptance or the day of deemed acceptance. Section 16. Date from which and rate at which interest is .....

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e Bank. Section 17. Recovery of amount due.-For any goods supplied or services rendered by the supplier, the buyer shall be liable to pay the amount with interest thereon as provided under section 16. Section 18. Reference to Micro and Small Enterprises Facilitation Council.- 1. Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprises Facilitatio .....

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ere the conciliation initiated under sub-section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer to it any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act, 1996 shall then apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to in sub-se .....

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ninety days from the date of making such a reference. Section 19. Application for setting aside decree, award or order.-No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the appellant (not being a supplier) has deposited with it seventy-five per cent of the amount in terms of the de .....

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, by notification, establish one or more Micro and Small Enterprises Facilitation Councils, at such places, exercising such jurisdiction and for such areas, as may be specified in the notification. Section 21. Composition of Micro and Small Enterprises Facilitation Council.-1. The Micro and Small Enterprise Facilitation Council shall consist of not less than three but not more than five members to be appointed from among the following categories, namely: i. Director of Industries, by whatever na .....

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ing special knowledge in the field of industry, finance, law, trade or commerce. 2. The person appointed under clause (i) of sub-section (1) shall be the Chairperson of the Micro and Small Enterprises Facilitation Council. 3. The composition of the Micro and Small Enterprises Facilitation Council, the manner of filling vacancies of its members and the procedure to be followed in the discharge of their functions by the members shall be such as may be prescribed by the State Government. 25. Sectio .....

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on made under Section 19 of the 2006 Act, thus not being a stage of initial adjudication of the dispute consequent on a unilateral determination by one of the parties, unlike in the case of the Section 17(2) under the 2002 Act, the ratio of Mardia Chemicals Ltd's case (supra) is not attracted to this case. 26. Accordingly, we find no merit in the plea of the petitioners that the condition incorporated in Section 19 of the 2006 Act that no application for setting aside any decree, award or ot .....

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te Power Corporation Ltd.'s case (supra) it was observed as under: 25. Now question (c) remains to be answered. With regard to the said question whether the first appellate authority in its right to hear appeal has powers to grant interim protection against imposition of such a condition for hearing of appeals on merits, the following facets of the argument would arise for our consideration:- (a) Inherent powers of the Court to grant interim protection; (b) Whether the expression shall used .....

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essary for ordinary and efficient exercise of jurisdiction already conferred. They are as such result of the very nature of its organization and are essential to its existence and protection and for the due administration of justice. The inherent power of a court is the power to do all things that are reasonably necessary for administration of justice within the scope of court's jurisdiction. The basic principal is to be found in Maxwell On Interpretation of Statutes, eleventh Edition at pag .....

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t in Income Tax Officer, Cannanore vs. M.K. Mohamad Kunhi, AIR 1969 SC 430, wherein the question was whether the Income Tax Appellate Tribunal had the power under the relevant provisions of the Income Tax Act, 1961 to stay recovery of the realization of the penalty imposed by the departmental authorities on an assessee during the pendency of an appeal before it. After considering the matter, the Apex court held that the Appellate Tribunal has power to grant stay as incidental or ancillary to its .....

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issue has been considered by a Full Bench of this Court in CIT vs. Punjab Financial Corporation, (2002) 254 ITR 6 wherein it was noticed that the meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, design and the consequences which would follow from construing it one way or the other. The use of the word shall in a statutory provision, though generally taken in a mandatory sense d .....

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rther, we may notice some of the principles of interpretation of the statutes. These are : (1) The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construin .....

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d "may" has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceedings invalid-State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 (headnote). (3) All the parts of a statute or sections must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction put to be on a particular provision makes consistent e .....

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(headnote). xxx xxx xxx 32. Before we record our conclusion on question No.(c), noticed hereinbefore, it would also be apposite to refer to a five Judges Full Bench of this Court in Ranjit Singh vs. State of Haryana and others, (2012) 2 RCR (Civil) 353 to which one of us (Ajay Kumar Mittal,J.) was a member which was dealing with similar provision i.e. Section 13B of the Punjab Village Common Lands (Regulation) 1961 wherein entertainment of appeal was subject to deposit of amount of penalty impo .....

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s for granting interim relief of stay. 33. It is, thus, concluded that even when no express power has been conferred on the first appellate authority to pass an order of interim injunction/protection, in our opinion, by necessary implication and intendment in view of various pronouncements and legal proposition expounded above and in the interest of justice, it would essentially be held that the power to grant interim injunction/protection is embedded in Section 62(5) of the PVAT Act. Instead of .....

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rse in view of the special nature of taxation and revenue laws. Only when a strong prima facie case is made out will the first appellate authority consider whether to grant interim protection/injunction or not. Partial or complete waiver will be granted only in deserving and appropriate cases where the first appellate authority is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the condition of pre-deposit to continue as a condition precedent t .....

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ment and in the interest of justice. This power was not to be exercised in routine but only on a strong prima facie case being made out and the first appellate authority being satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the condition of pre-deposit to continue as a condition precedent to the hearing of the appeal before it. 29. Relying on the aforesaid decision, this Court in CWP No.12922 of 2014 titled as 'Maruti Suzuki India Limited v .....

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requirement of pre-deposit in the same circumstances and conditions as explained in detail in the Punjab State Power Corporation Ltd.'s case (supra). 30. Goodyear India Ltd.'s case (supra) relied on by the Ld. Counsel for the respondents is of no help to them as in that case neither the vires of the Section 19 of the 2006 Act was questioned nor any argument based on the inherent power of the Court was raised as is clear from the following observations: 9. Of course, Mr. Ramachandran has .....

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