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Showing 61 to 80 of 910 Records
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2008 (8) TMI 967 - SUPREME COURT
Dismissal of suit for perpetual injunction - Powers of High Court u/s 24 Code of Civil Procedure, 1908 - whether the High Court was justified in dismissing the two suits on the sole ground that it was proposing to examine a similar issue in the Writ Petition preferred by the original owner of the land? - HELD THAT:- It is trite that the rule of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil court has to be considered having regard to the contentions raised in the plaint. Church of North India v. Lavajibhai Ratanjibhai and Ors.[2005 (5) TMI 636 - SUPREME COURT].
Having considered the matter in the light legal position, we are of the opinion that the impugned order cannot be sustained. It is true that u/s 24 of the Code, the High Court has jurisdiction to suo motu withdraw a suit or appeal, pending in any court subordinate to it, to its file and adjudicate itself on the issues involved therein and dispose of the same. Unless the High Court decides to transfer the suit or the appeal, as the case may be, to some other court or the same court, it is obliged to try, adjudicate and dispose of the same. It needs little emphasis that the High Court is competent to dispose of the suit on preliminary issues, as contemplated in Order 14 Rule 1 & 2 of the Code, which may include the issues with regard to maintainability of the suit.
If the High Court is convinced that the plaint read as a whole does not disclose any cause of action, it may reject the plaint in terms of Order 7 Rule 11 of the Code. As a matter of fact, as observed by V.R. Krishna Iyer, J., in T. Arivandandam [1977 (10) TMI 116 - SUPREME COURT], if on a meaningful - not formal - reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the court should exercise its power - under the said provision. And if clever drafting has created an illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Order X CPC. Nonetheless, the fact remains that the suit has to be disposed of either by the High Court or by the courts subordinate to it in a meaningful manner as per the procedure prescribed in the Code and not on one's own whims.
We have no hesitation in holding that the procedure adopted by the High Court is unknown to law. We are conscious of the fact that the object of filing of the suits could be a dubious and indirect attempt on the part of Tek Chand, respondent No. 4, to derive some undue advantage in connivance with the plaintiffs, yet that was no ground to dismiss the suits summarily. It must be kept in mind that one of the fundamental norms of judicial process is that arguable questions either legal or factual, should not be summarily dismissed without recording a reasoned order.
A mere entertainment of the Writ Petition, to which the appellants herein were not parties, even if it involved determination of similar issues, in our opinion, was not a good ground to dismiss the two suits without granting opportunity to the parties to prove their respective stands. Moreover, the scope of the Writ Petition and the two suits also seems to be different.
Therefore, the appeal is allowed; the impugned order, is set aside and the two suits and the appeal, dismissed in terms of the said order, are restored to the file of the High Court for fresh adjudication and disposal in accordance with law.
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2008 (8) TMI 966 - SUPREME COURT
Applications seeking to quash the criminal proceedings after the compromised between the parties - Financial Fraud with Bank - Bank filed a suit for recovery of the amount payable - Cheating and use of forged documents - learned ASG was urged that even if no steps have been taken by the CBI since the chargesheet was filed in 1998, the same would not be a ground for quashing the criminal proceedings once the chargesheet had been filed.
HELD THAT:- The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s Neemuch Emballage Limited, Mumbai, in order to avail of credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled.
Despite the ingredients and the factual content of an offence of cheating punishable u/s 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi's case [2003 (3) TMI 721 - SUPREME COURT] becomes relevant.
In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled.
keeping in mind the decision of this Court in B.S. Joshi's case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.
We, therefore, set aside the order passed by the High Court dismissing the petitioner's revision application in Special Case and quash the proceedings against the appellant. The appeal is accordingly allowed.
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2008 (8) TMI 965 - MADRAS HIGH COURT
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... ... ..... e their rights. 14. In the circumstances, for the purpose of considering the winding up petition, it is not necessary for this Court to get into the binding nature of the foreign judgment with reference to Section 44A or 13(c) of the Code of Civil Procedure. I feel it is suffice for me to make this reference for the purpose of completion of the narration of the submissions made by learned senior counsel on either side. Considering the fact that grounds do not exist factually as required under Section 433 of the Companies Act, I do not find any ground to admit the company petition. The petitioner has not proved the inability of the respondent-company to pay the alleged debt. 15. In the circumstances, with the dispute raised as to the enforceability of the debt, I do not find any justification to order this petition. Hence, I reject this company petition. Accordingly, this company petition is dismissed. No costs. Consequently, all the connected applications are also dismissed.
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2008 (8) TMI 964 - COMPANY LAW BOARD, CHENNAI
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... ... ..... CEPL and the subsidiaries, if any, in favour of CG Holdings and KCP. CEPL is consequently authorized to reduce its share capital and in the meantime, operation of the impugned agreements is suspended, to expedite and ensure due completion of the modalities of exit by ORE and Athappan, thereby, bringing to an end the acts complained of in the present proceedings. CEPL shall ensure necessary statutory compliances till the whole process, in accordance with the aforesaid directions, is properly completed. The parties are at liberty to apply in the event of any difficulty in implementation of the smooth exist of ORE and Athappan from CEPL.” 106. With the above directions, both the company petitions and connected company applications are disposed of. In view of this (a) interim orders made in C.P. No. 65 of 2005 on 10.11.2005 and 02.07.2007; and (b) interim orders dated 16.12.2005 and 05.01.2006 made in C.P. No. 76 of 2005 stand appropriately modified. No order as to costs.
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2008 (8) TMI 963 - ALLAHABAD HIGH COURT
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... ... ..... e cost of repetition the undisputed fact that the commodity in question is sold in small packs and is not purchased as edible oil, the order of remand is not justified. The matters are now more than two decades old and, therefore, the portion of the order of the Tribunal which provides for remand of the case to the Assessing Authority needs interference and the same is set aside. The question No. 6 is decided accordingly. 33. In view of the above discussions, it is held that the Tribunal was justified in holding that Parachute coconut oil is liable to be taxed as 'hair oil' and not under the category of 'oils of all kinds'. But it was not justified in remanding the matter to the Assessing Authority for further probing. 34. In the result, the revisions succeed and allowed in part so far as it relates to the portion of the order and remanding the matter to the Assessing Authority is concerned. For the rest, the revisions are dismissed. 35. No order as to costs.
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2008 (8) TMI 962 - MADRAS HIGH COURT
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... ... ..... ing the trial of the lis. The applicant has shown prima facie that he was ready and willing to perform his part of the contract even before expiry of the agreement of sale. The Pay Order for ₹ 42,80,000/- obtained by the applicant, the telegram and notice issued by him speak volume of the readiness on the part of the applicant. Prima facie case has been established before this Court by the applicant. If the respondents are not restrained by way of an order of injunction from encumbering the property, the valuable right of the applicants will be thwarted. Much hardship also will be caused to the applicants apart from multiplicity of proceedings. 26. In view of the above, an order of interim injunction is granted afresh till the disposal of the Suit. The Application in O.A. No. 548 of 2008 stands allowed. As the Court has granted interim injunction till the disposal of the Suit in O.A. No. 548 of 2008, these two Applications in A. Nos. 3633 and 3837 of 2008 stand closed.
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2008 (8) TMI 961 - CALCUTTA HIGH COURT
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... ... ..... o the stockbroker and all the payments received from stockbroker through account payee instruments, which were also filed in accordance with the assessment. It appears from the facts and materials placed before the Tribunal and after examining the same the Tribunal came to the conclusion and allowed the appeal filed by the assessee. In doing so, the Tribunal held that the transaction fully supported by the documentary evidences could not be brushed aside on suspicion and surmises. However, it was held that the transactions of share are genuine. Therefore, we do not find that there is any reason to hold that there is any substantial question of law involved in this matter. Hence, the appeal being ITA No.620 of 2008 is dismissed. All parties concerned are to act on a signed xerox copy of the minutes of this order on the usual undertakings. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2008 (8) TMI 960 - SC ORDER
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... ... ..... udgment, revenue had filed an appeal in this Court being Civil Appeal No. 7578 of 1999 which was dismissed by this Court vide its order dated 7-1-2000 and the same is reported in 2000 (120) E.L.T. A119 (S.C.). Since the judgment in Elgi Ultra Appliances Limited (supra), relying upon which the Tribunal has allowed the appeal of the assessee, has been affirmed by this Court, we do not find any merit in the present appeals and dismiss the same. No order as to costs.
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2008 (8) TMI 959 - ALLAHABAD HIGH COURT
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... ... ..... was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty v. State of Mysore 1961 3SCR652 , it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa v. Pyari Mohan Samantaray and Ors. AIR1976SC2617 and State of Orissa and Ors. v. Arun Kumar Patnaik and Ors. AIR1976SC1639 and the said view has also been followed recently in Shiv Dass v. Union of India and Ors. (2007)IILLJ212SC and New Delhi Municipal Council (supra). Since the order impugned m the writ petition is of 1989 and has been challenged after more than 19 years, f do not find it a fit case warranting interference under Article 226 of the Constitution of India. The petitioner is guilty of undue long delay and laches which has not been satisfactory explained. 5. The writ petition is accordingly, dismissed.
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2008 (8) TMI 958 - MADRAS HIGH COURT
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... ... ..... y this court, they cannot enforce the order of the lower authority. Hence, the stay petition is dismissed.
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2008 (8) TMI 957 - BOMBAY HIGH COURT
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... ... ..... y 2000 (119) E.L.T. 290 in support of the decision and that this decision has been accepted by the revenue, in our opinion, the appeal cannot be entertained. It is rejected.
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2008 (8) TMI 956 - DELHI HIGH COURT
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... ... ..... ties to the arbitration agreement is intended to preserve and protect the goods. The plea of the learned Single Judge having exceeded his jurisdiction is mis-conceived. The helicopters in question had been lying at the ware house since December, 1999 with no prospect of AES taking delivery of the same, having gone into liquidation. The goods because of lying unused would be subjected to attrition and it would be a national waste. In these circumstances, it was just and proper that pending the arbitration proceedings, Pawan Hans be permitted to take possession of the goods and retain the same. Pawan Hans as the owner of the goods and complete sale consideration having not been paid to it was entitled to its possession and these could not be retained by FJF and SWC on the ground that their charges had not been paid. There was no fetter on FJF and SWC to recover the transportation and warehousing charges from AEC. We find no merit in the appeals. Both the appeals are dismissed.
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2008 (8) TMI 955 - SUPREME COURT
Power of Judicial Magistrate to entertain application filled u/s 319 after 8- 10 years - time limit prescribed to entertain application - recall an order of summoning the accused - Whether in Absence of sanction as envisaged by Section 197, No Prosecution could be launched?
HELD THAT:- The contention of the ld counsel for respondent No. 2 is that the power u/s 319 of the Code, cannot be exercised belatedly by the Court. Again, such order can be made only on the application by the Public Prosecutor or by some person other than the accused. In other words, an application u/s 319 cannot be filed by a person who is facing the trial.
We are unable to uphold the contentions. We have quoted Section 319 of the Code. It nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court.
When applications u/s 319 of the Code were preferred by the appellant praying to join respondent No.2 as an accused and to issue summons, the ld Magistrate considered the evidence of prosecution witnesses and he was satisfied that depositions of witnesses prima facie made out offence against respondent No.2.
Admittedly, the Judicial Magistrate had considered a limited question whether on the basis of evidence of prosecution witnesses, prima facie offence had been made out against respondent No.2. He was, on the basis of such evidence, was satisfied that the case was required to be gone into and issued a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that ground, the order was not in accordance with law.
Ld counsel for respondent No.2, however, submitted that the Revisional Court was right in any case in allowing the revision and in quashing proceedings against the said respondent on the ground of absence of sanction as required by Section 197 of the Code.
We express our inability to agree with the ld counsel. It is settled law that offences punishable u/s 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while ‘acting or purporting to act in discharge of official duty’.
The Revisional Court was aware of legal position. It was, however, held by the Court that at the most there was negligence on the part of respondent No.2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at the time of trial and not at the stage of issuing summons. Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves to be set aside even on that ground.
It was also urged that no applications by the appellant could have been entertained by the trial Court after about 8 to 10 years from the date of filing of FIR. Now, an application u/s 319 of the Code can only be made to a Court and the Court may exercise the power under the said Section if it appears from evidence that any person other than the accused had also committed an offence for which he can be tried together with the accused.
It was the case of the appellant that it was during the course of prosecution evidence that he came to know that signatures of respondent No. 2 were sent for examination, some report was received by the prosecution which was not produced in Court and on the basis of such evidence, the case was made out against respondent No.2. If in these circumstances, applications were made and the prayer was granted, we see no infirmity therein.
In the totality of the facts and circumstances, the submission of the ld counsel for the appellant that the State Authorities were helping and assisting respondent No.2 cannot be said to be totally ill-founded or without substance. The State, in our opinion, could have easily avoided such embarrassment.
Therefore, the appeal deserves to be allowed and is accordingly allowed. The orders passed by the Additional Sessions Judge and the High Court are set aside and the order passed by the Judicial Magistrate is restored. Since the matter pertains to FIR of 1986, the ld Magistrate is directed to conclude the trial expeditiously.
We may clarify that we have not entered into allegations and counter-allegations. We have considered the facts and circumstanced to a limited extent to decide correctness of the order passed by the Judicial Magistrate under Section 319 of the Code. Ordered accordingly.
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2008 (8) TMI 954 - DELHI HIGH COURT
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... ... ..... y Law Board did not have the jurisdiction to decide petition under Section 111 of the Companies Act, 1956, where persons notified under the Special Court Act, 1992 are involved. Company Law Board‟s order dated 12th April 2005 cannot afford any precedent nor be of any assistance in determining the controversy in question as in aforesaid order, it is noticed that no proceedings in any court were pending then in respect of the shares in question. 8. For the aforesaid reasons, appeal of the Appellant is allowed and impugned order dated 14th July 2006 is set aside and the application under Order 7 Rule 11 of CPC of the Respondent is dismissed and the Suit No.72/2005, of the Appellant stands restored. Trial Court record be sent back. 9. Both the sides are directed to appear before the trial Court on 15th September, 2008 for further proceedings in accordance with the law. With the aforesaid directions, the appeal stands disposed of leaving the parties to bear their own costs.
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2008 (8) TMI 953 - CESTAT CHENNAI
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... ... ..... nnexure - I Certificate, they have been in a position to claim the benefit of the Notification from 1.3.2003 as a "generating company". 12. In the result, the order of the Commissioner demanding duty with interest is sustained. 13. However, as regards penalty, we take the view that, in the nature of this case where the appellants, though not eligible to claim under the Notification, used Annexure - I Certificates for duty-free procurement of LSHS and utilized the goods for the intended purpose, the party cannot be said to have done anything with intent to evade payment of duty and hence cannot be penalized. It is also noteworthy that the dispute between them and the department has involved rival interpretations of the relevant provisions of Notification No. 6/2002-CE, the 2001 Rules, the 1910 Act, the 1948 Act etc., as also of case law. In the circumstances, the penalty is set aside. The appeal is allowed to this extent only. (Pronounced in open court on 19.8.2008)
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2008 (8) TMI 952 - CESTAT, NEW DELHI
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... ... ..... able to pay the amount at the rate of 8 on the value of the rectified spirit being cleared for manufacture of IMFL in terms of Rule 57CC of the Rules as the said rule was applicable to their case. 2. Contention of the Revenue is that the respondents are not entitled for credit in respect of molasses exclusively used in the manufacture of country liquor a non-excisable commodity. We find that this issue is already settled by the Tribunal in the respondents own case i.e. CCE, Lucknow vs. Kesar Enterprises, reported in 2001 (130) ELT 93 (Tri.-Del.) & Kesar Enterprises Ltd. vs. CCE, Lucknow, reported in 2002 (147) ELT 293 (Tri.-Del.). In these cases the Tribunal held that the present respondents are entitled to avail Modvat credit on the levy molasses and they are liable to pay duty 8 on the value of rectified spirit being cleared for the manufacture of IMFL. In view of the above decisions we find no merit in the appeal. The same is dismissed. (Pronounced in the Open Court.)
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2008 (8) TMI 951 - DELHI HIGH COURT
Dishonour of cheque - Undated cheque was given as a security - cheque was given for consideration or not - Issued summon order for Cognizance of offence u/s 138, 139 and 141 - Application u/s 482 for quashing the summon order - HELD THAT:- It is noteworthy that, notice of demand sent by the complainant in terms of Section 138 did not elicit any response. Furthermore, even before this Court, counsel for the petitioners has not explained why his clients failed to make any specific demand in writing for return of the cheque since, according to them, its purpose had already been served, and the contract for which the cheque was issued, was over.
In N. Rangachari Vs. Bharat Sanchar Nigam Ltd.[2007 (4) TMI 621 - SUPREME COURT], it was held that if, on reading the complaint as a whole, all the elements of the offence u/s 138 and 141 are made out, then any pleas put forward by the appellant and the defences sought to be put forward by the accused, can only be looked into after the trial is concluded.
Admittedly the cheque was given for consideration. The respondent has tried to encash that cheque against consideration which, according to the respondent, was due to it. In addition, Section 139 also creates a presumption in favour of the complainant. Under the circumstances, the onus for proving otherwise lies on the petitioners and can only be discharged at the trial. Furthermore, as held in Modi Cements Ltd. Vs. Kuchil Kumar Nandi, [1998 (3) TMI 632 - SUPREME COURT], once a cheque is issued by the drawer, a presumption u/s 139 must follow, and merely because the cheque in question was undated at the time it was handed over does not mean that it was given without consideration. There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over.
There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over. On the contrary, as per the ratio of Anil Kumar Sawhney Vs. Gulshan Rai [1993 (10) TMI 347 - SUPREME COURT], the cheque is deemed to be drawn on the date mentioned on the cheque. Lastly, the notice u/s 138 issued by the respondent, was admittedly received by the petitioners but they did not bother to reply. Looking to the totality of the circumstances, it cannot be said that no prima facie case is made out or that interference with the proceedings before the Ld. Metropolitan Magistrate is warranted in the exercise of this Court’s jurisdiction u/s 482 Cr.P.C.
The petition is, therefore, dismissed.
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2008 (8) TMI 950 - DELHI HIGH COURT
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... ... ..... copy of the order dt. 17th Aug., 2007 passed in that appeal has been placed before us. We find that the issue raised therein is exactly the same as the one sought to be raised here, namely, the claim of deduction under s. 43B of the said Act on the ground that it was required to make a special value branch (SVB) deposit with the customs authorities. This Court after examining the order of the Tribunal impugned in that appeal came to the conclusion that no fault could be found with the view taken by the Tribunal primarily because the liability was required to be discharged by the assessee on the payment and that the assessee had no option but to make the payment. This Court held that such payment clearly fell within s. 43B(a) of the said Act. As such, this Court found that no substantial question of law arose and dismissed the appeal. o p /o p For the very same reason, we find that no substantial question of law arises for our consideration. The appeal is dismissed. o p /o p
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2008 (8) TMI 949 - SUPREME COURT
Attack with deadly weapons - Compounding of offences - matter has been compounded by compromise between the parties - Convicted for offences punishable u/s 147 and 324 IPC - HELD THAT:- The compounding of an offence signifies that the person against whom an offence has been committed has received some gratification to an act as an inducement for his abstaining from proceeding further with the case [2007 (12) TMI 444 - SUPREME COURT].
Section 320 deals with offences which are compoundable, either by the parties without the leave of the Court or by the parties but only with the leave of the Court. It is clear that offences not referred to in sub-sections (1) and (2) of Section 320 and not included in the Table are not compoundable. Similarly, offences punishable under laws other than the Indian Penal Code also cannot be compounded.
It is no doubt true as stated by the ld counsel for the appellants even at the time of preliminary hearing of this matter that by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) the above entry has been deleted. In other words, an offence of voluntarily causing hurt by dangerous weapons or means punishable u/s 324, IPC is no more compoundable. The Amendment Act of 2005 came into force from June 23, 2006.
According to the prosecution, the appellants had committed the offence on June 15, 1995. Hence, in our opinion, Act 25 of 2005 has no application to the facts of the case. We, therefore, see no ground to refuse permission as sought by the parties who have compromised the offence which was compoundable under the Code as it stood in 1995. If it is so, compounding can be permitted and accused (appellants) can be acquitted.
Therefore, the appeal deserves to be allowed and is accordingly allowed by holding that since the matter has been compounded by compromise between the parties and there is no illegality therein, such compounding can be permitted by the Court. The appellants are, hence, entitled to acquittal.
The order of conviction and sentence recorded by all Courts is hereby set aside.
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2008 (8) TMI 948 - BOMBAY HIGH COURT
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... ... ..... we find that the tribunal has rightly held that the point is squarely covered by the judgment of the tribunal in Phillips Carbon Black Ltd. V./s. Commissioner, Bolpur reported in 1998 (25) RLT 141 (CEGAT). No question of law arises in this appeal. Hence, rejected.
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