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Showing 1 to 20 of 646 Records
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2005 (9) TMI 697 - SUPREME COURT
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... ... ..... ry's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. 11. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed. 12. In the above background the High Court's judgment does not suffer from any infirmity. The appeal is dismissed without any order as to costs.
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2005 (9) TMI 696 - SC ORDER
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... ... ..... DER Exemption allowed. Appeal admitted. No stay.
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2005 (9) TMI 695 - KARNATAKA HIGH COURT
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... ... ..... attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The doctrine of promissory estoppel cannot be invoked in the abstract and the Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental rights of equity must for ever be present to the mind of the Court, while considering the applicability of the doctrine. The doctrine must yield, when the equity so demands, if it could be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurances and representations. 22. Under these circumstances, I do not find any merit in these writ petitions. Accordingly, the writ petitions are dismissed. No costs.
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2005 (9) TMI 694 - SUPREME COURT
Murder - Offence u/s 302 r/w Section 34 - Challenged the Order passed for Grant Of Bail - HELD THAT:- We agree with the submission urged before us that the directions contained in the aforesaid judgment of the High Court are only in the nature of guidelines and the High Court should not be understood to have laid down an invariable rule to be observed with mathematical precision. In fact in the very first paragraph of the judgment the learned Judges observed that they were making "an attempt to frame certain guidelines" for the grant of bail. Difficulties may arise if such a direction is treated as an invariable rule in the matter of grant of discretionary relief.
The rule laid down in Dharampal's case may be inferentially understood to mean that unless a convict has undergone five years imprisonment, he should not be released on bail. This would again lead to travesty of justice, because in a given case having regard to the evidence on record and the reasoning of the Court convicting the accused, the High Court in an appeal may well be persuaded and justified in granting bail to the appellant even while admitting his appeal.
We, therefore, hold that the High Court of Punjab and Haryana in Dharampal's case laid down guidelines which ought to be kept in mind by Courts dealing with applications for grant of bail in a pending appeal. It does not lay down any hard and fast rule of universal application. As we have observed earlier, it would be futile to lay down any strait jacket formula in such matters.
So far as the instant appeal is concerned by our order dated May 12, 2005 we have granted bail to the appellant who had remained in custody for about six years and four months. Apart from the facts and circumstances of the case, we also notice the fact that the co-accused had been released on bail by the High Court.
The interim order made on May 5, 2005 is made absolute. This appeal stands disposed of in the above terms.
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2005 (9) TMI 693 - SUPREME COURT
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... ... ..... under the Rules. The second sanction order dated 7.9.97 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14.9.94, which is bad. The cognizance was taken by the Special Judge on 29.5.95. Therefore, when the Special Judge took cognizance on 29.5.95, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction. This being the law, we are unable to sustain the submission of learned counsel for the appellant. Having regard to the gravity of the allegations levelled against the respondent, we permit the competent authority to issue a fresh sanction order by an authority competent under the Rules and proceed afresh against the respondent from the stage of taking cognizance of the offence and in accordance with law. The appeal stands disposed of in the above terms.
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2005 (9) TMI 692 - ANDHRA PRADESH HIGH COURT
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... ... ..... acquisition shall be subsequent to the instigation or facilitation; but it was shown that acquired wealth being subsequently kept on the name or any person i.e., subsequent acquisition that amounts to abetment. In the illustration, there is a reference for a request to be made to the person in whose name the property has to be kept and the request being accepted by that person. In the case of wife and husband, very fact of allowing the property to be kept on the name of wife would automatically amount to abetment. 26. In all these circumstances, it is not a case where the second accused, who is arrayed as an abettor can be discharged initially. In the result, the revision case is allowed. The lower Court is directed to register the case against A-1 for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. A-2 cannot be discharged from the accusation of being abettor of the same and cognizance has to be taken against her for the same.
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2005 (9) TMI 691 - BOMBAY HIGH COURT
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... ... ..... ly submitted that in the present case the complaint is filed in the name of the payee by the holder of power of attorney. Power of attorney holder has full knowledge of the transaction. Not only that the application filed by the petitioners for re-call of process shows that the power of attorney holder (who happens to be husband of sole proprietress of the payee) was dealing with this transaction from the beginning. He had been to Sendhawa for collection through Cosmos bank. Thus, in the present case, the Magistrate was justified in recording the statement of the power of attorney holder. On being satisfied that there are sufficient grounds for proceeding, learned Magistrate has issued process against the petitioners under Section 138 of N.I. Act. Therefore, no fault can be found with the impugned order. 19. In the result, the petition fails and is accordingly dismissed. Rule discharged. However, in the circumstances of the present case, the parties shall bear their own cost.
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2005 (9) TMI 690 - KARNATAKA HIGH COURT
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... ... ..... link support and unless that is established, a decree under Order 12 Rule 6 of the Code of Civil Procedure cannot be granted. 8. Having considered the rival submissions and also the law in what circumstances a decree could be granted under Order 12 Rule 6 of the Code of Civil Procedure, I am of the considered view that the impugned order passed by the learned Trial Judge cannot be faulted, Consequently, I do not find any merit in this petition. Petition stands rejected. Any observation made in respect of the documents, which are referred to during the course of the order shall be only for the purpose of the disposal of the application under Order 12 Rule 6 of the Code of Civil Procedure which shall not have any bearing on the merits of the case. The petitioner is at liberty to prove the veracity of the said documents during the course of the trial. The learned Trial Judge shall expedite trial and shall dispose of the same on or before the Commencement of summer vacation 2006.
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2005 (9) TMI 689 - SUPREME COURT
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... ... ..... . We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession." 14. The explanation offered by the plaintiffs is plausible. The defendants did not specifically raise any plea that the time taken was unreasonable. No evidence was led. No specific plea was raised before the trial Court and first appellate Court. The question of reasonable time was to be factually adjudicated. For the first time in the Second Appeal the dispute essentially founded on factual foundation could not have been raised. 15. In view of what has been stated by this Court in Firm Sriniwas case (supra) and Sant Lal's case (supra), the inevitable conclusion is that the High Court's judgment is not sustainable. Accordingly the judgment of the High Court is set aside. 16. The appeal is allowed without any order as to costs.
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2005 (9) TMI 688 - SC ORDER
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... ... ..... ranted to file additional documents within four weeks. The appeal is admitted.
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2005 (9) TMI 687 - CESTAT BANGALORE
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... ... ..... The appellants have made out very strong ground for considering their plea that they are not Management Consultant in the light of the submissions made. Their pleas require reconsideration by the lower appellate authority. Therefore we are of the considered opinion that the matter is required to go back for de novo consideration. The Commissioner shall decide the matter in the light of the submissions and grounds which have already been brought out by the appellants in the proceedings including their submissions that they were only selling software and it is only sale of goods in terms of the Apex Court judgments (supra). As the other issues have not been dealt with by the Commissioner, that should also be dealt with in the de novo proceedings. The Commissioner shall dispose of the matter within a period of four months from the date of receipt of this order. The appellants may also make use of this opportunity to contest the appeal. (Pronounced and dictated in the open Court)
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2005 (9) TMI 686 - GUJARAT HIGH COURT
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... ... ..... eciation of evidence on record and after taking into consideration the ratio of the Apex Court decision in case of C.I.T. v. Orissa Corporation Pvt. Ltd., 159 ITR 78 as well as this High Court in case of D.C.I.T. v. Rohini Builders, 256 ITR 360. It is found from the record that the creditors have advanced the monies through bank and placed evidence in this regard on record, are assessed to income tax. In the circumstances, the position in law is well settled that if the assessing officer is not satisfied about the capacity or the creditworthiness of the party in question or as to the source from which the creditor has deposited the amount, it is open to the assessing officer to make the addition in hands of the respective creditors after making appropriate inquiry. 4.In the circumstances, there being no infirmity in the impugned order of Tribunal, no substantial question of law can be said to arise out of the order of the Tribunal. All these appeals are accordingly dismissed.
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2005 (9) TMI 685 - CESTAT BANGALORE
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... ... ..... 1986. The same is not the position in this case as no cess has been paid. Therefore, the above rulings cannot be distinguished and this bench is bound to follow the same in terms of judicial discipline. 4. On a careful consideration, I notice that this bench is bound by the ratio of the above noted judgments. A different view cannot be taken as it would amount to judicial indiscipline. In all the above noted judgments, a categorical and clear finding has been given that, payment of know-how and royalty is not consultancy and so also right to use trade mark is a transaction of property and no consultancy or advice is involved arid hence it has been held that the same is not liable to Service Tax under consulting engineer. In view of the above noted judgments, the levy of service tax on the amount of royalty paid by the assessee is not recoverable. The impugned order is unsustainable and the same is set aside by allowing the appeal. (Pronounced and dictated in open Court)
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2005 (9) TMI 684 - PATNA HIGH COURT
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... ... ..... the evidence adduced by the parties at the time of final hearing of the suit and these are not matters which can be decided at the initial stage either under Order VII Rule 11 or under Order XIV Rule 2 of the Code. In any view of the matter, it is yet to be proved in the instant case by valid evidence that whether the ingredients of benami transactions were present and the property in question was purchased benami and that at the time of the said purchase in 1956 and 1965 what was the intention of the buyers actual or name-lender. These issues can be decided only after considering the merits of the respective claims of the parties on the basis of their evidence and specific provisions of law. Hence, only on the basis of Section 4 of the Act the entire suit can not be allowed to fall at this preliminary stage. 20. In the aforesaid facts and circumstances of the case, I do not find any jurisdictional error in the impugned order and accordingly this Civil Revision is dismissed.
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2005 (9) TMI 683 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... tes Non-maintenance of separate client account Non-segregation of separate client account with own account Not reporting off the floor transactions Non redressal of investor complaints Order Warning" 17. However, this is a case where the appellant ought to have made due verification with regard to the client Jayaprakash, whose only income admittedly known to the appellant was only ₹ 3 lakhs and that Jayaprakash who was trading in a scrip which was under investigation. The appellant ought to have been diligent and careful. Therefore, having regard to the facts and circumstances of this case, the order of the respondent is modified to that of mere warning to enable the appellant to be more vigilant in future. 18. Taking into account the good track record of the appellant and the appellant's reputation in the securities market as a broker it is our desire that this order should not be treated as a stigma to impede growth of the appellant. 19. No order as to costs.
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2005 (9) TMI 682 - SUPREME COURT
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... ... ..... operating in derogation of the other. In Canara Bank v. Nuclear Power Corporation of India Ltd. (1995 (3) JT SC 42) this Court held that the Company Law Board was a Court while exercising the functions of the Court. No serious challenge is raised by learned counsel for the appellant to the proposition that the Tribunal is a judicial authority within the meaning of the Arbitration Act. While accepting the stand of the appellant in a given case the provisions of Section 8(3) of the Act could be rendered nugatory by requiring the Tribunal to refer the matter to an arbitrator. In view of what has been stated above, the inevitable conclusion is that the Civil Appeal No.6593 of 2003 is sans merit. Civil Appeal No. 5143/2005 In view of our judgment in C.A. No.6593 of 2003, this appeal is equally without merit. We record our appreciation for the valuable assistance rendered by Mr. P.S. Narasimha appeared as Amicus Curiae. Both the appeals are dismissed without any order as to costs.
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2005 (9) TMI 681 - SUPREME COURT
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... ... ..... ccused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of the Cr. P.C. 27. In the result, we allow the Criminal Appeal No. 736/2003 filed by appellant Rohan Prakash and he is directed to be set at liberty forthwith if not required in any other case. Criminal Appeal No. 688/2003 filed by appellant Sidharth and Criminal Appeal No. 689/2003 filed by appellant Arnit Das are dismissed.
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2005 (9) TMI 680 - SUPREME COURT
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... ... ..... on of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from non-application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. 2002CriLJ1849, Puran etc. v. Rambilas and Anr. etc., 2001CriLJ2566 and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. 2004CriLJ1796. The above position was highlighted by this Court in Chaman Lal v. State of U.P. and Anr. 2004CriLJ4243. 9. Above being the position, the cryptic non-reasoned order of the High Court, is clearly indefensible. The inevitable conclusion is that the grant of bail to the respondent by a non-speaking and non-reasoned order was not proper. Therefore, we set aside the order of the High Court. The bail granted to respondent No. 1 stands cancelled. The respondent No. 1 shall surrender to custody forthwith. 10. The appeal is, accordingly, allowed.
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2005 (9) TMI 679 - BOMBAY HIGH COURT
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... ... ..... rge under Section 529-A of the Companies act, then in that event, plaintiffs and other Banks and financial institutions to whom the sale proceeds has been paid under this order shall discharge that liability in accordance with the principles of paripasu charge provided under Section 529-A of the Act. 4. In so far as other employees are concerned which are not entitled to such protection under Section 529-A, they will stand alongwith unsecured creditors and their rights will be covered by the same provision as made in respect of unsecured creditors. 5. All the parties who are appearing in the present suit have no objection to the aforesaid arrangement which takes care of unsecured creditors as well as workers and other employees of the said Company. 6. Suit is decreed in terms of Minutes of Order tendered. Notice of Motion No.2666-05 disposed of in terms of Minutes of Order. No order as to costs. Certified copy expedited. Parties to act on the authenticated copy of this order.
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2005 (9) TMI 678 - DELHI HIGH COURT
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... ... ..... es. Since the RBI had rejected the Petitioner's application for being granted permission to operate as an NBFC, maintenance of status quo for a period of one year would mean that this situation would continue. In that case there would have been no need to pass the impugned Orders. This would, however, obviously not meet the expectations of the Respondent Company. It is also not in dispute that the Appeal stands disposed of and is no longer on the Board of the Appellate Authority. Therefore, it cannot be understood how the matter could be reviewed after one year, and in any event that one year has already elapsed since the Order of the Appellate Authority is dated 26.4.2004 8. In this analysis the impugned Order dated 26.4.2004 of the Appellate Authority is not sustainable and is set-aside. the order dated 13.1.2004 is restored. The effect, inter alia, is that the interim Orders passed by Sanjay Kishan Kaul, J. are made absolute. 9. Parties to bear their respective costs.
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