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Showing 1 to 20 of 774 Records
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2009 (2) TMI 927 - DELHI HIGH COURT
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... ... ..... April, 2005), leave no scope for any doubt that the cheques in question were not issued against a debt which was in existence at the time of issuance of cheque. The cheques were issued not for an existing debt due, but issued by way of security. 24. For the reasons aforestated, the trial judge patently failed to read the complaint and the documents annexed along with it, carefully and further failed to see the error apparent on the fact of it, and issued summons without proper application of mind; In my considered opinion, in view of the principles affirmed in the case of V.Y. Jose (supra), the present petitions must succeed. Accordingly, Criminal Complaint Nos. 837/06 and 838/06 under section 138 read with section 141 of the Negotiable Instruments Act, 1881, pending before the learned Metropolitan Magistrate, are quashed and the summoning order dated 9.06.2006 in CC No. 837/06 and order dated 9.06.2006 in CC No. 838/06, are set aside. Petitions are disposed of, accordingly.
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2009 (2) TMI 926 - SUPREME COURT
Failure to deposit the mandatory amount for proceedings before Arbitration Tribunal - Reasonableness of amount as 7% of total amount claimed - Unequal bargaining power of the parties - Payment in respect of allotted work - Prescription under Sub-clause (7) of Clause 25-A of the agreement was in conflict with the provisions of Section 31(8) read with Section 38 - It was submitted that the costs involved cannot be more than Rs. 20 crores and, therefore, the demand of Rs. 1.81 crores which is 7% of the total amount claimed is wholly arbitrary, unreasonable and capricious - HC dismissed the Writ Petition.
HELD THAT:- It is to be noted that the plea relating to unequal bargaining power was made with great emphasis based on certain observations made by this Court in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr.[1986 (4) TMI 271 - SUPREME COURT]. The said decision does not in any way assist the appellant, because it has been clearly stated that the concept of unequal bargaining power has no application in case of commercial contracts.
A bare perusal of the Sub-section (8) of Section 31 and Section 38, clearly shows that the provision is to operate in the absence of agreement with regard to cost. It cannot be pressed into service to get over Sub-clause (7) of Clause 25-A.
The stand taken by the appellant is squarely answered by what has been stated by this Court in Assistant Excise Commissioner and Ors. v. Issac Peter and Ors.[1994 (2) TMI 294 - SUPREME COURT] held that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts.
It has been submitted by ld Counsel for the appellant that there should be a cap in the quantum payable in terms of Sub-clause (7) of Clause 25-A. This plea is clearly without substance. It is to be noted that it is structured on the basis of the quantum involved. Higher the claim, the higher is the amount of fee chargeable. There is a logic in it. It is the balancing factor to prevent frivolous and inflated claims. If the appellants' plea is accepted that there should be a cap in the figure, a claimant who is making higher claim stands on a better pedestal than one who makes a claim of a lesser amount.
Appeal is clearly without merit, deserves dismissal which we direct.
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2009 (2) TMI 925 - SC ORDER
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... ... ..... T.V. Ratnam, Adv., Mr. Sanjeev K. Bhardwaj, Adv., Mr. B.V. Balaram Das, Adv. For the Respondent None. ORDER Dismissed.
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2009 (2) TMI 924 - KERALA HIGH COURT
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... ... ..... he Tribunal has only followed decision of this court and allowed the assessee's claim. Following the judgment of the Supreme Court referred above, we allow the appeal in part by setting aside the order of the Tribunal and that of the C.I.T.(Appeal) pertaining to relief granted under Section 80 HHC with direction to the Assessing Officer to recompute eligible relief under Section 80 HHC by following judgment of the Supreme Court above-referred and after giving opportunity to the assessee. The Tribunal's order pertaining to the last question will stand confirmed.
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2009 (2) TMI 923 - DELHI HIGH COURT
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... ... ..... the counsel for the respondent. The petitioner cannot be denied the right to be considered for appointment to the said post under the 'OBC' category once there is no dispute that she belongs to OBC Category. Admittedly, there was no lapse on the part of the petitioner who had applied to obtain the said certificate in the OBC Category much prior to the date of the advertisement and she cannot be made to suffer simply on account of the fact that the authorities have taken considerable time in making available the OBC certificate. 13. In view of the above discussion and considering the ratio of Tejpal Singh's judgment (supra), I extend the benefit of OBC category to the petitioner. The respondents are directed accordingly to consider the application of the petitioner against the OBC category within a period of one month and accordingly announce the result taking in view the relaxation available to the OBC candidates. With these directions the petition is disposed of.
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2009 (2) TMI 922 - SUPREME COURT
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... ... ..... he salary of JBT teachers i.e. the old post. Therefore, there is no question of granting them the initial pay the stage of timescale next above their substantive pay in respect of the old post. Judicial fiat cannot create anomalous position against the statute.” 5. Learned counsel for the respondent on the other hand submitted that Pratap Singh’s case (supra) has no relevance and it is factually distinguishable. 6. The factual scenario has been spelt out above. 7. The High Court came to an abrupt conclusion regarding entitlement relying on an earlier decision without indicating as to how the factual scenario was similar. 8. In the aforesaid background, we deem it fit to remit the matter to the High Court to consider the applicability and relevance of Pratap Singh’s case (supra) to the facts of the present case and to decide the matter afresh. 9. We request the High Court to dispose of the matter as early as practicable. The appeal is disposed of accordingly.
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2009 (2) TMI 921 - SUPREME COURT
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... ... ..... charge over the property having regard to the plain meaning of Article 372 of the Constitution of India must be held to prevail over the Crown debt which is an unsecured one. It is trite that when a Parliament or State Legislature makes an enactment, the same would prevail over the common law. 12. Thus, the common law principle which was existing on the date of coming into force of the Constitution of India must yield to a statutory provision. 13. To achieve the same purpose, the Parliament as also the State Legislatures inserted provisions in various statutes, some of which have been referred to hereinbefore providing that the statutory dues shall be the first charge over the properties of the tax-payer. This aspect of the matter has been considered by this Court in a series of judgments." 24. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed with costs. Counsel's fee assessed at Rs.10,000/-
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2009 (2) TMI 920 - KERALA HIGH COURT
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... ... ..... 24 is barred by limitation and if the assessment is otherwise tenable under Section 25, then certainly he is entitled to invoke Section 25 and make assessment as an Assessing Officer, if he is authorised by Commissioner under Section 2(v) of the Act. Since in this case the first respondent is authorised by the Commissioner to function as an Assessing Officer, he is entitled to make a turnover escaping assessment under Section 25 as above. The very purpose of conferring concurrent jurisdiction on different officers is to ensure collection of tax, if the regular officer fails in it. We, therefore, find that the order passed by the first respondent is within his powers and so much so, order cannot be challenged on the ground of want of jurisdiction. The Writ Appeal is, therefore, dismissed. However, the freedom given by the Single Judge to file appeal against revised order is no longer available to the appellant by virtue of the condition imposed while admitting the Writ Appeal.
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2009 (2) TMI 919 - SUPREME COURT
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... ... ..... and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 8. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence. 9. The appeal is dismissed.
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2009 (2) TMI 918 - SUPREME COURT
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... ... ..... ed in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar)" 15. There cannot be any doubt whatsoever that the principles of natural justice are required to be complied with. But, in a case of this nature, the same would be an empty formality. The facts are not disputed. The identity of the suit land has not been changed. It is not a case where, as submitted by Mr. Mahabir Singh, one land is being substituted by another. The fact that the town survey No. 463 is a joint family property is not in dispute. As indicated hereinbefore, it is the same plot which was the subject matter of sale and only in respect thereof the appellants herein could claim partition. Appellants have also furthermore not been able to show as to how and in what manner they have been prejudiced. 16. For the reasons aforementioned, there is no merit in this appeal, which is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2009 (2) TMI 917 - KARNATAKA HIGH COURT
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... ... ..... e, be said that there is no loss of earning capacity. It is this looming misfortune of loss of employment on account of the permanent disability which has made him less efficient, certainly requires to be compensated in the presence of positive evidence. Therefore, in my opinion, the appellant has made out a case for compensation towards loss of earning capacity on the basis adopted by this court. Though the basis that has been consistently adopted in calculating the compensation by applying the multiplier method may not be relevant here as there is no be of a total loss of earning or a reduction in the earning, it is the chance of that reduction or loss which is compensated and therefore, the appellant is entitled to a nominal compensation of Rs. 30,000/- towards loss of earning capacity. The appeal is partly allowed The appellant is held entitled to a total additional compensation of Rs. 65,000/- with interest at 6% per annum from the date of claim till the date of payment.
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2009 (2) TMI 916 - SUPREME COURT
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... ... ..... service, there is no need for holding an enquiry or for giving an opportunity to the employee to be heard or show cause. Holding an employee guilty of a misconduct on admission, or altering the conditions of service with consent, without enquiry or opportunity to show cause, does not violate principles of natural justice. 7. In the circumstances, the Tribunal and the High Court were clearly wrong in accepting the claim of the respondent. The absence of enquiry before altering the date of birth as 02.5.1945 did not affect the validity of the retirement of respondent. Nor did the acquittal in the criminal appeal subsequent to his retirement, entitle the respondent to claim that his date of birth should have been treated as 11.1.1948 or that he should have been reinstated and continued in service till 31.1.2006. 8. We therefore allow this appeal, set aside the order of the High Court and the Tribunal and dismiss respondent's application (OA No. 85/2005) before the Tribunal.
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2009 (2) TMI 915 - SUPREME COURT
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... ... ..... n actionable claim would not be subject to the sales tax law. x x x A lottery ticket has no value in itself. It is a mere piece of paper. Its value lies in the fact that it represents a chance or a right to a conditional benefit of winning a prize of a greater value than the consideration paid for the transfer of that chance. It is nothing more than a token or evidence of this right. The Court in H.Anraj, as we have seen, held that a lottery ticket is a slip of paper of memoranda evidencing the transfer of certain rights. We agree. x x x The question is, what is this right which the ticket represents? There can be no doubt that on purchasing a lottery ticket, the purchaser would have a claim to a conditional interest in the prize money which is not in the purchaser's possession. The right would fall squarely within the definition of an actionable claim and would therefore be excluded from the definition of goods' under the Sale of Goods Act and the Sales tax statutes.
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2009 (2) TMI 914 - GUJARAT HIGH COURT
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... ... ..... ue of several accused persons approaching several High Courts in a case where the cause of action could be traced to events and actions taking place in more than one State. If all the High Courts within whose territorial jurisdiction any of the acts constituting the offences have taken place and all the High Courts assume extraordinary writ jurisdiction for intervention in a criminal case registered in any one of the States, a distinct possibility of several High Courts taking inconsistent views and issuing conflicting directions may arise. Therefore, judicial discipline requires and expediency demands that only the High Court within whose territorial jurisdiction the complaint is filed or criminal case is pending entertains the petitions arising therefrom. 9. In the facts and for the reasons discussed hereinabove, the petition is summarily dismissed only on the ground of jurisdiction and without entering into merits or examination of the other averments made in the petition.
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2009 (2) TMI 913 - SC ORDER
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... ... ..... ade out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra v. Ashok Hurra & Anr., 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed.
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2009 (2) TMI 912 - SUPREME COURT
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... ... ..... dian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. 4. Extension of Code to extra-territorial offences. -- The provisions of this Code apply also to any offence committed by-- (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. 28. It will be evident from the above that a person liable by any Indian law to be tried for any offence committed beyond India is to be dealt with under the provisions of the Code, having regard to the fact that the provisions of the Code would also apply to any offence committed by any citizen of India in any place within and beyond India. 29. In that view of the matter, we see no reason to interfere with the order of the High Court impugned in this appeal. The appeal is accordingly dismissed.
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2009 (2) TMI 911 - CALCUTTA HIGH COURT
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... ... ..... tisfy itself on all aspects concerned of the properties, including the nature of the company in liquidation's right in the property or description of the property and having given the bid and participated in the open bidding it was too late in the day to raise the issues. In these circumstances, relief was refused. No law has been laid down therein decisive for adjudication of the present dispute. 26. We thus find no reason to differ with the decision of the learned judge in allowing the applications filed by the Nigam. The appeals are without merit. The same stand dismissed. However, parties shall bear their own costs. Photostat copy of this judgment, duly countersigned by the Assistant Registrar (Court), shall be retained with the records of A. P. O. T. No. 248 of 2008. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within four days from the date of putting in requisites therefore. SURINDER SINGH NIJJAR, C.J. 27. I agree.
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2009 (2) TMI 910 - SC ORDER
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... ... ..... and for M/s. Dua Associates, Advs. ORDER Having gone through the provisions of the Securitisation Act, 2002, in the light of the judgment of the Division Bench of this Court in the case of Union of India Vs. Sicom Ltd. & Anr., reported in 2009 (1) SCALE 10, we find that under the provisions of the said 2002 Act, the appellants did not have any statutory first charge over the property secured by the respondent Bank. In the circumstances, the Civil Appeal is dismissed with no order as to costs.
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2009 (2) TMI 909 - RAJASTHAN HIGH COURT
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... ... ..... nature, but is an offence under Section 420 IPC. 25. In Misc. Petition filed by P.I. Industries Ltd., petitioner was charged for having misbranded the insecticide product. Objections with regard to not sending of second sample or consent etc. could have been raised even during the course of trial or by way of filing revision before the learned Sessions Judge. 26. From the face value of both the complaints, neither the magistrate while taking cognizance, has abused the process of law nor the cases are of such nature, which bars his jurisdiction or which comes under the category of civil nature so as to attract the provisions of Section 482 CrPC. The appropriate remedy available to the petitioners is to approach the revisional court under Section 397 of the Code, if they so desire and In that event, the period consumed in the petition shall not come in the way for the purpose of limitation. 27. Consequently, both these Misc. Petitions are dismissed with the above observations.
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2009 (2) TMI 908 - BOMBAY HIGH COURT
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... ... ..... .10 lacs. Moreover, since the cheque was given by the accused in blank, on 14/02/2003 the Complainant could not have had even the implied authority to complete the cheque in the sum of ₹ 1.10 lacs in view of the said admission by the Complainant that he had received ₹ 8,000/- from the accused. 5.This Court in Laxmikant D. Naik Karmali Vs. Santosh Naik 2006 (2) Bom.CR 830) has held that when a cheque is issued for an amount more than due by the accused, Section 138 of the Act is not attracted. 6.In other words, the accused had sufficiently rebutted the presumption available to the Complainant that the subject cheque was issued in payment of debt or liability to the extent of ₹ 1.10 lacs. In this view of the matter, the acquittal of the accused could not be faulted. 7.There is no substance in this appeal. Consequently, the same is hereby dismissed. Considering the facts of the case, the costs of ₹ 5,000/- are to be paid by the Complainant to the accused.
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