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Indian Laws - Case Laws
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2024 (12) TMI 1
Dishonour of Cheque - application filed u/s 482 of CrPC for quashing complaint under Section 138 of NI Act - HELD THAT:- Admittedly, the petitioner has issued two numbers of post-dated Cheques bearing No. 622623 and 622624 for an amount of Rs. 93,00,000/- and Rs. 1,54,00,000/- respectively. The parties have entered into an agreement with certain stipulations/terms and conditions. The terms and conditions of the Deed of Undertaking duly executed between the petitioner and the respondent provides that the petitioner will clear the GST, amounting to Rs. 9,63,00,000/-in respect of the firm-M/s Kurung Kumey Enterprises for execution of the work. An amount of Rs. 9,63,00,000/-, of which 10% GST amount will be Rs. 33,00,000/- shall be paid by the petitioner to the respondent. If the GST of 2% is reflected by the Department of Municipal Corporation, the amount to be paid by the petitioner will be Rs. 1,54,00,000/- to the respondent.
Perusal of the Deed of Undertaking goes to show that the two Cheques have been issued as post-dated for an amount of Rs. 93,00,000/- and Rs. 1,54,00,000/- to the respondent on fulfillment of certain conditions. Having considered the said stipulation, it is afraid that such an stipulation could be a valid stipulation insofar as the issuance of Cheques are concerned.
This Court finds no ground to quash the proceedings of C.R. No. 100/2022 and taking cognizance by the learned Judicial Magistrate First Class, Yupia, as if at all, the issues/grounds that have been raised appears to be a matter of trial before the competent Court.
It is not inclined to invoke the inherent power of this Court for quashing of the proceedings in the instant case - The criminal petition is rejected and stands dismissed.
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2024 (11) TMI 1335
Rejection of Original Application on the ground of delay and laches - applicability of time limitation - issuance of the provisional gradation list - scope of judicial review - HELD THAT:- The principle of delay and laches is to be applicable in a case where the principle of limitation is made out. The same is strictly applicable in a proceeding under Article 226 of the Constitution of India or any other litigation where the principle of limitation is not applicable. If the principle of limitation is applicable then, the case is to be considered on the basis of applicability of principle of limitation by giving go-bye to the principle of delay and laches.
The position of law is very settled that under Article 226 of the Constitution of India the principle of delay and laches is held to be applicable, however, the period of limitation is not applicable.
In STATE OF MP VERSUS NANDLAL JAISWAL [1986 (10) TMI 321 - SUPREME COURT], the Hon'ble Apex Court has observed that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and if there is inordinate delay on the part of the petitioner in filing the writ petitioner and such delay is not satisfactorily explained, the High Court may decline to interfere and grant relief in exercise of its writ jurisdiction. Emphasis was laid down on the principle of delay and laches stating that the High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and inconvenience in bringing the justice.
The Central Administrative Tribunal has been given the Constitutional status and in order to carry out the judicial proceeding a statute has been formulated known as the Administrative Tribunal Act, 1985. The Tribunal has been conferred with a power under section 14 of the Administrative Tribunal Act, 1985 - Further, the Tribunal has been conferred with the power to condone the delay as per the provision made under sub-section (3) of Section 21 of the Act, 1985 whereby and whereunder, it has been laid down in view of the principle as contained under Section 5 of the Limitation Act, 1963 to condone the delay if the sufficient cause will be shown.
It is evident that the Administrative Tribunal Act, 1985 wherein the Tribunal is to apply the principle of limitation for the purpose of acceptance of the original application subject to the power to condone the delay, meaning thereby, the whatever power has been conferred to the High Court under Article 226 of the Constitution of India, the same is little bit different, even though the Tribunal is having the Constitutional status to the effect that under Article 226 of the Constitution of India, there is non- applicability of principle of limitation and, as such, by virtue of the judicial pronouncement the principle of delay and laches has been held to be applicable on the principle that inordinate delay cannot be allowed to approach the Court of equity after lapse of a reasonable delay, subject to sufficient cause.
Thus, it is evident that the sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted deliberately” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously.
This Court is of the view that the objection has been dealt with by the authority on 13.01.2020 and immediately within a period of one year the Tribunal has been approached by the petitioner and, as such, it is not even a case to satisfy the learned Tribunal for the purpose of condoning the delay, since, the Tribunal has been approached within a period of one year from the date when the objection of the writ petitioner has been rejected , i.e., on 13.01.2020.
The error apparent on the face of the order means that if the order appears on its face having with error, then only the power of judicial review is to be exercised. The scope of judicial review conferred to the High Court under Article 226 of the Constitution of India in sowing interference with the award passed by the adjudicator/Tribunal - This Court in the premise of the power conferred to exercise the power of judicial review is now proceeding to examine the propriety of the impugned order wherefrom it is evident that the Original Application of the writ petitioner has been rejected on the ground of applicability of principle of delay and laches and limitation.
It is evident that while dealing with the issue of limitation, the learned Tribunal has not dealt with that as to from which date either the limitation will count or from which date the principle of delay and laches would be applicable - this Court is of the view that the learned Tribunal has not appreciated the factual aspect before coming to the conclusion about the applicability either of the principle of delay and laches or the principle of limitation.
The impugned order dated 24.08.2022 passed in Original Application by the learned Tribunal is hereby set aside - the matter is remitted to the learned Tribunal to pass order afresh after affording opportunity of hearing to the parties concerned in accordance with law - Petition disposed off.
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2024 (11) TMI 1275
Seeking grant of bail - smuggling of huge commercial quantity of heroin - recording of statements u/s 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 - existence of other corroborative evidences or not - right of Accused of speedy trial - HELD THAT:- Admittedly the record show that present Applicant and Accused No. 1 were partners in a firm dealing with clearing of the consignment. It is also claimed that Accused No.1 and the present Applicant are related with each other. In such circumstance, phone calls between Accused Nos. 1 and 2 are but natural, on personal front as well as on business transaction - The transactions which have been pointed out on behalf of the respondent are only with regard to charge of fees with regard to clearance of the consignment. Such amounts are only in few thousand and not having any suspicion with regard to the contention of dealing in drugs.
The Clearing Agent or a person who is facilitating the agent to clear the consignment is not supposed to know an exact material which is found in the said consignment though such bills required to be mentioned about it. Admittedly such consignment was received from a foreign country and it requires customs clearance since the customs authorities suspected some foul play, they alerted the DRI and accordingly raid was conducted - Applicant was not present when the consignment was opened and search was carried out. It was Accused No.1, who was present during the search of the said consignment and he was responsible for clearing the said consignment though claimed for and on behalf of Accused Nos.2 and 4. Thus the material which has been collected by the complainant qua the present Applicant is not enough to sufficiently corroborating the case and existence of the call details and forwarding of the bills to Accused No.1 cannot be considered as presumption of the knowledge of the Applicant about the drugs concealed in the said consignment.
In the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT], the Apex Court has observed that prolong incarceration and inordinate delay engaged in the conclusion or the trial would certainly affect the right of Accused of speedy trial and in such circumstance, Section 37 of NDPS Act or such provisions under the Special Acts would not be an impediment to grant bail. The Apex Court further observed that the person seeking bail is still an Accused and not a convict and thus he is entitled for a speedy trial and if it is not possible to decide his case as enshrined under Article 21 of the Constitution and if he is kept inside without any progress in the matter, such Accused is certainly entitled to be released on bail.
Similar observations are found in the case of ANKUR CHAUDHARY VERSUS STATE OF MADHYA PRADESH [2024 (5) TMI 1463 - SC ORDER] by the Apex Court which consider the embargo under Section 37 of the NDPS Act. The Apex Court found that failure to conclude trial within a reasonable period resulting in prolong incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and as such, conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act could be considered.
Coming back to the matter in hand, it is no doubt true that a huge commercial quantity of heroin was found in the container, but except statement under Section 67 of NDPS Act which is otherwise not admissible in evidence as far as admissions/ confessions of the present Applicant are concerned, there is hardly any corroborative evidence. Thus the provisions of Section 37 of the NDPS Act would not be considered as an embargo in the present matter even though commercial quantity was detected and seized - Applicant is in custody from last 3 years and till date there is absolutely no progress in the said matter. The conclusion of trial in near future is again a remote possibility. Accordingly, I am of the considered opinion that the Applicant is entitled for the bail in connection with the present matter. However, on strict conditions.
Applicant shall be released on furnishing a personal bond of Rs.1 Lakh with two solvent sureties in the like amount to the satisfaction of the Learned Special Court and on the fulfilment of conditions imposed - bail application allowed.
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2024 (11) TMI 1274
Misconduct under the Chartered Accountants Act, 1949 - removal of respondent’s name from the Register of Members for a period of six months - scope of the disciplinary proceedings - HELD THAT:- The present disciplinary proceedings cannot be said to have been affected due to the absence of the complainant.
Admittedly, respondent had purchased the shares in the year 1997, but denied having sold them to the complainant. Surprisingly, the signatures on the share transfer deed has been admitted by the respondent. He tried to render an explanation that an employee of the broker made him sign the blank transfer deed on the pretext that it was needed for some unrelated share delivery issue, which may have been fraudulently used for the purpose of selling shares to the complainant. However, the explanation given does not look probable, inasmuch as, respondent is a qualified Chartered Accountant and it is difficult to believe that he would sign blank transfer deed - Respondent has also failed to render any explanation for four years delay in applying for duplicate share certificates. No satisfactory explanation for four years delay in applying for duplicate share certificates has been put forth by the respondent. The continued receipt of dividends after the sale of certificates reflects an attempt on his behalf to take benefit from shares, he no longer owned.
It is well settled that the scope of interference with the decision of any Authority under Article 226 of the Constitution of India is limited. Even though, it was contended on behalf of the respondent that the decision of the Disciplinary Committee was perverse and unreasonable, the said contention is found to be wholly bereft of any merit - the Disciplinary Committee found that respondent had failed to act in a bona fide manner and the said conduct was derogatory in nature and highly unbecoming of a Chartered Accountant and brought disrepute to the profession.
The punishment awarded to the respondent is not unduly harsh. The recommendation of the Council to the effect that the name of respondent be removed from the Register of Members for a period of six months, accepted - Reference disposed off.
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2024 (11) TMI 1173
Seeking grant of pre-arrest bail - offences punishable under Sections 9, 39, 48 and 48A read with 51 of the Wild Life (Protection) Act, 1972 - capturing six ball pythons, a golden child retic, three striped mud turtles, an Indian star turtle, a marmoset monkey, and an iguana on a specified premises - HELD THAT:- From a cursory reading of Schedule I of the Act, it appears that the Indian star turtle does not form part of this Schedule, and the other animals are included in Appendix I to Schedule I. Under Section 51 of the Act, this violation is punishable for imprisonment for a term upto three years, a fine extended to Rs.1 lakh, or both. It is acknowledged that the applicant was not present during the alleged raid. Upon a perusal of the records, particularly, the leave and license agreement of the premises, it appears that the applicant was neither the owner nor the licensee of the premises. The applicant merely attested to the document as a witness, which in itself does not suggest his involvement in the crime. At this stage, the material on record does not prima facie incriminate the applicant in the present crime.
Additionally, the animals have been seized and it is reported that the animals have been relocated as required by law. The prosecution’s apprehension about evidence tampering and witness influence can be addressed by imposing appropriate conditions. In these circumstances, this Court is inclined to exercise its discretion in favour of the applicant.
In the event of the applicant’s arrest in connection with Forest Offence Report No.WL-08-2024 (also registered as WL-61- 2024), he shall be released on bail upon executing a PR Bond of Rs.25,000/- and furnishing one or more sureties in the like amount - Application disposed off.
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2024 (11) TMI 1172
Termination of Agreements - specific performance of contract - Balance of Convenience - Irreparable Loss - Section 11 of the Arbitration and Conciliation Act 1996 - HELD THAT:- The scope of interference with discretionary orders of injunction by the appeal Court is quite limited. The appeal Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion is shown to have been exercised arbitrarily, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against the exercise of discretion is an appeal on principle. The appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in judicial manner, the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion.
Any direction to treat the applications under Section 9 as Section 17 applications would involve complications, though it might save paper. Subsequent developments might be difficult to record. Therefore, it would be appropriate to grant the parties leave to file applications under Section 17, which could then be decided without being influenced by this interim arrangement.
The above arrangement will operate as an ad-interim arrangement. The parties may file their applications under Section 17 within four weeks from today. The above ad- interim arrangement shall operate until the Arbitral Tribunal disposes of Section 17 applications, if filed or until the Arbitral Tribunal may direct. The Arbitral Tribunal must decide the applications under Section 17 without being influenced by any observations in the impugned judgments and orders dated 20 September 2024 or this judgment and order.
The ad-interim orders granted in these Appeals are vacated since now the parties would have to abide by the ad- interim arrangement now indicated.
Appeal disposed off.
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2024 (11) TMI 1171
Professional misconduct - scope of clause (7) of Part-1 of Second Schedule to the Act - whether, on the basis of the material available on record, the petitioner has been rightly held guilty of professional misconduct, as covered under clause (7) of Part I of the Second Schedule to the Act, and whether an order from this Court under Section 21(6) of the Act is merited? - HELD THAT:- Coordinate Bench of this Court in case of Institute of Chartered Accountants of India, New Delhi v. B.L. Khanna & Anr. [2000 (9) TMI 1094 - DELHI HIGH COURT], had the occasion to explain the scope of clause (7) and the meaning of ‘gross negligence’. It was held that whether the professional was grossly negligent or not would depend on the fact whether he had applied his mind diligently to the job entrusted to him, and whether due care and caution, as is required to be adopted, was taken. Additionally, it should also be seen whether there was failure to act honestly or reasonably. It was also observed that “when a Chartered Accountant signs certificates, minimum that is expected to do is to verify the accuracy of the figures certified.”
It does appear that the respondent no. 1, on the mere asking of the Society, and without seeking any document from the Society in this regard, had mentioned amount of ₹ 41,000/- as expenditure towards Additional Essential Machinery in the second Utilisation Certificate, and also later certified that this certificate would supersede all the previous certificates issued by him. There was also no reason assigned by him in the said clarification, as to why the second Utilisation Certificate would supersede the previous certificates issued by him.
It is noted that in the case of Council of Institute of Chartered Accountants of India v. Dayal Singh FCA, [2007 (5) TMI 696 - DELHI HIGH COURT], the allegations against the respondent therein (a chartered accountant) were that he was instrumental in getting a loan sanctioned from Union Bank of India in favor of an entity, on the basis of forged documents such as quotations, supply orders, money deposit receipts of various firms, rent deed and rent receipts etc., and that he had given a false certificate stating that the concerned entity had brought the contribution required in the books on the basis of which loan had been released from Union Bank of India.
Similarly, in The Institute of Chartered Accountants of India v. Manakchand Laxman Baheti, [2023 (10) TMI 1101 - BOMBAY HIGH COURT], the Division Bench of Bombay High Court noted that the reports of the Disciplinary Committee had revealed that the respondent therein (a chartered accountant) had no documents on the basis of which the certificates were issued by him. The certificates simply stated that they had been issued on the specific request of the firm. On being asked to produce documents regarding statements of expenditure incurred by the firms, invoices/vouchers for purchase of plant and machinery for civil work and land development etc., the respondent therein was unable to produce any document.
The conduct of the respondent no. 1 in issuing the first Utilisation Certificate would not amount to ‘gross negligence’, the fact that while issuing the second Utilisation Certificate dated 28.01.2004, the respondent no. 1 did not seek any document such as invoices or receipts or bank statements or road permit for bringing machinery in the State of Manipur (as it appears from the record) from the Society which would show return of machinery of ₹ 2,50,000/- and purchase of another set of machinery of ₹ 41,000/-, would amount to lack of due diligence and gross negligence on part of the respondent no. 1, more so when the Utilisation Certificates issued by the respondent no. 1 were for the purpose of securing loans from the complainant.
The Council has not erred in holding the respondent no. 1, guilty of professional misconduct under clause (7) of Part-I of Second Schedule to the Act - Insofar as the recommendation for removing the name of respondent no. 1 from the Register of Members for one year is concerned, it is noted that the respondent no. 1 has been a member of ICAI for approximately three decades, with no history of any other complaint or allegation of misconduct on record. The present complaint was filed against him in the year 2005, and the proceedings against him have remained pending for about 19 years.
Considering that the present proceedings have continued for 19 years without any history of professional misconduct by the respondent no. 1, the ends of justice would be served by severely reprimanding the respondent no. 1, under Section 21(6)(b) of the Act, for his professional misconduct - the present reference is disposed of.
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2024 (11) TMI 1123
Challenge to insertion of the words ‘socialist’ and ‘secular’ in the Preamble to the Constitution of India by the Constitution (Forty-second Amendment) Act in 1976 - retrospectivity of the insertion in 1976, resulting in falsity as the Constitution was adopted on the 26th day of November 1949 - whether word ‘secular’ was deliberately eschewed by the Constituent Assembly, and the word ‘socialist’ fetters and restricts the economic policy choice vesting in the elected government?
HELD THAT:- The fact that the writ petitions were filed in 2020, forty-four years after the words ‘socialist’ and ‘secular’ became integral to the Preamble, makes the prayers particularly questionable. This stems from the fact that these terms have achieved widespread acceptance, with their meanings understood by “We, the people of India” without any semblance of doubt. The additions to the Preamble have not restricted or impeded legislations or policies pursued by elected governments, provided such actions did not infringe upon fundamental and constitutional rights or the basic structure of the Constitution. Therefore, there are no legitimate cause or justification for challenging this constitutional amendment after nearly 44 years. The circumstances do not warrant this Court’s exercise of discretion to undertake an exhaustive examination, as the constitutional position remains unambiguous, negating the need for a detailed academic pronouncement.
There are no justification or need to issue notice in the present writ petitions, and the same are accordingly dismissed.
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2024 (11) TMI 1111
Power and jurisdiction to extend the period, after the expiry of the Arbitral Tribunal's mandate - Whether the application filed by the appellant under Section 29A(4) of the Arbitration and Conciliation Act, 1996 for extension of the mandate of the Arbitral Tribunal ought to have been allowed by the High Court?
Whether the application for extension can be entertained if it is filed after the expiry of the Arbitral Tribunal’s mandate? - HELD THAT:- When must an application under Section 29A(4) be filed - The effect of the provision is that if the arbitral award is not made within 12 months from when the pleadings are completed, extendable by a further 6 months by mutual consent of parties, the Tribunal’s mandate will terminate, unless the court either prior or after the expiry of the period, extends it. The wording of subsection (4) clearly and explicitly enables a court to extend the Tribunal’s mandate after expiry of the statutory and extendable period of 18 months.
The issue is no longer res integra in view of a recent decision of this Court in Rohan Builders [2024 (10) TMI 1393 - SUPREME COURT (LB)] The case squarely covers the issue against him - This Court in Rohan Builders has held that the application for extension of time can be filed even after the expiry of the period in sub-sections (1) and (3). Even if sub-section (4) provides for the termination of the Tribunal’s mandate on the expiry of the period, it recognises party autonomy to move an application before the Court for further extension. Thus, the termination of mandate under the provision is only conditional on the non-filing of an extension application, and cannot be taken to mean that the mandate cannot be extended once it expires.
The wording of Section 29A(4) and the decision in Rohan Builders clearly answer the first issue in favour of the appellant, i.e., an application for extension can be filed either before or after the termination of the Tribunal’s mandate upon expiry of the statutory and extendable period.
Whether an extension of time should be granted in the present case? - HELD THAT:- As per Section 29A(5), the decision to extend the time is an exercise of discretion by the court and must be done on sufficient cause being shown, and on such terms and conditions that the court deems fit.
The issue is not whether the application under Section 29A(4) is filed within the permissible time for seeking extension, i.e., 12 months, followed by another 6 months at the consent of the parties. The real issue is whether there is a sufficient cause for the Court to extend the period for making of the award. For considering whether there is a sufficient cause or not, it is necessary to take into account the following events. As indicated earlier, even before expiry of the period of 12 months under Section 29A(1), commencing from 09.10.2019 (date of completion of pleadings), the COVID pandemic had started. The period between 15.03.2020 and 28.02.2022 is anyways mandated to be excluded from periods of limitation - thus, it is clear that the reasoning adopted by the High Court in holding that there is a delay of 2 years, 4 months in filing the application is erroneous.
The meaning of 'sufficient cause' for extending the time to make an award must take colour from the underlying purpose of the arbitration process. The primary objective in rendering an arbitral award is to resolve disputes through the agreed dispute resolution mechanism as contracted by the parties. Therefore, 'sufficient cause' should be interpreted in the context of facilitating effective dispute resolution.
Having taken note of the fact that the pandemic had commenced even before the expiry of 12 months from the completion of pleadings, this Court excluding the period between 15.03.2020 to 28.02.2023 in Re: Cognizance for Extension of Limitation [2022 (1) TMI 385 - SC ORDER], and the agreement between the parties on 05.05.2023 to seek extension of time by filing an application before the Court, it is opined that there is sufficient cause for extension of time.
The order and judgment passed by the High Court is set aside - civil appeal allowed.
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2024 (11) TMI 1110
Locus standi of appellant, M.R. Ajayan, to prefer this SLP against the impugned order - proceedings in question to be hit by the bar under Section 195(1)(b) Cr.P.C. or not - Correctness of de novo steps to be taken against the appellant.
Whether M.R. Ajayan, appellant in SLP(Crl.)No.4887 of 2024 has the locus standi to prefer this SLP against the impugned order? - HELD THAT:- The locus of a private individual seeking the exercise of jurisdiction of this Court under Article 136 of the Constitution is no longer res integra. This Court in National Commission for Women [2010 (7) TMI 1131 - SUPREME COURT] has observed that an appeal by a private individual can be entertained, both sparingly and after due vigilance, following the exposition of law in Arunachalam [1980 (2) TMI 271 - SUPREME COURT]. Furthermore, in Amanuallah [2016 (4) TMI 1474 - SUPREME COURT], this Court dealt with this issue in detail and observed 'From the material placed on record, it is clear that the appellants have precise connection with the matter at hand and thus, have locus to maintain this appeal.'
More recently, similar to the case at hand, in Naveen Singh v. State of U.P. (2- Judge Bench) [2021 (3) TMI 1466 - SUPREME COURT], while considering the locus of the Petitioner therein, this Court observed that since the allegations concerned tampering with the order of the Court, hence locus is not that important but, in fact, insignificant with the State not carrying forward the matter any further.
The locus standi of the appellant in SLP(Crl.)No.4887 of 2024, does not come in the way of this Court hearing the same. The case at hand, which has been quashed by the High Court, involves serious allegations of interference with judicial processes which strike at the very foundation of both dispensation and the administration of justice. Therefore, the first issue is answered in the affirmative as it is incumbent upon this Court to check the correctness of the approach adopted by the High Court, and the locus of the appellant would not come in the way of the same.
Whether the High Court has rightly held the proceedings in question to be hit by the bar under Section 195(1)(b) Cr.P.C.? - HELD THAT:- In the instant case, the High Court, on the basis of the above bar on taking cognizance, has quashed the order taking cognizance and proceedings emanating therefrom. This approach was not correct - On a perusal of the FIR, it is clear that based on the letter issued by the Kerala High Court dated 27th September, 1994 and by the District Judge, Trivandrum, the offence was registered against the accused persons. The criminal proceedings clearly do not arise from a complaint by a private individual.
The initiation of the present proceedings in the present case, was from the judgment and order dated 5thFebruary, 1991 of the Kerala High Court in Criminal Appeal No. 20 of 1991, in acquitting Andrew Salvatore directing the matter of planting of Mo2 be positively looked into. This was followed by an investigation by the vigilance officer of the Court. Therefore, in the impugned order, the High Court has erroneously observed that there is no judicial order concerning the present proceedings.
There is no distinction between a judicial or administrative order by a “Court to which that Court is subordinate - the question is answered in the negative.
Independent of the above, whether the High Court could have ordered de novo steps to be taken against the appellant? - HELD THAT :- Reference made to the judgment of this Court in Sunita Devi v. State of Bihar & Anr. (2-Judge Bench) [2024 (5) TMI 1489 - SUPREME COURT], wherein it was stated 'An Appellate Court has got ample power to direct re-trial. However, such a power is to be exercised in exceptional cases. The irregularities found must be so material that a re-trial is the only option. In other words, the failure to follow the mandate of law must cause a serious prejudice vitiating the entire trial, which cannot be cured otherwise, except by way of a re-trial. Once such a re-trial is ordered, the effect is that all the proceedings recorded by the Court would get obliterated leading to a fresh trial, which is inclusive of the examination of witnesses.'
Applying the above principles to the case at hand, the alleged forgery of evidence in a criminal investigation has resulted in acquittal in the NDPS case and, thereafter, an FIR has been registered, in the circumstance referred to hereinbefore. But then, the interference by the High Court in quashing the criminal proceedings was unwarranted.
In view of the above the impugned order is set aside - Appeal allowed.
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2024 (11) TMI 1075
Seeking appointment of a sole arbitrator to adjudicate the disputes between the parties - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Since the existence of the arbitration agreement is evident from a perusal of the Agreement, there is no impediment to appointing an independent Sole Arbitrator to adjudicate the disputes between the parties as prayed for, and as mandated in terms of the judgments of the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd [2019 (11) TMI 1154 - SUPREME COURT], TRF Limited v. Energo Engineering Projects Ltd, [2017 (7) TMI 1288 - SUPREME COURT], Bharat Broadband Network Limited v. United Telecoms Limited., [2019 (4) TMI 983 - SUPREME COURT] and Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In SBI General Insurance Co. Ltd. v. Krish Spinning [2024 (9) TMI 606 - SUPREME COURT].
In the circumstances, since there is no controversy as regards the existence of the arbitration agreement, there is no impediment to appointing a sole arbitrator to adjudicate the disputes between the parties - Ms. Prity Sharma, Advocate (Mob. No. +91 9911028589) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.
Petition disposed off.
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2024 (11) TMI 980
Jurisdiction of Micro and Small Enterprises Facilitation Council to refer the purported disputes obtaining between MRPL and Driplex for adjudication via arbitration - Validity of the "No Claim Certificate" issued by the supplier and its impact on the claims -
Jurisdiction of Micro and Small Enterprises Facilitation Council to refer the purported disputes obtaining between MRPL and Driplex for adjudication via arbitration - HELD THAT:- In the instant matter, MRPL and Driplex entered into an agreement on 01.12.2009. Driplex submitted a memorandum to register itself as a small enterprise under the 2006 Act on 09.12.2011. Concededly, Driplex completed its work and obtained a certificate from MRPL after registration under Section 8 of the 2006 Act i.e., only on 11.03.2013. Since Driplex had been awarded a turnkey contract, the work, quite naturally, would have continued even after it filed a memorandum i.e., obtained registration under the 2006 Act.
The judgment in Shanti conductors’ case [2019 (1) TMI 1906 - SUPREME COURT], which was rendered by a three-judge bench of the Supreme Court and concerned pari materia provisions contained in the 1993 Act tilts the balance in favour of Driplex as it, inter alia, holds that the applicability of the Act i.e., the 1993 Act would be determined on the date when the goods were supplied, and services were rendered and not the date when contract was entered into between the disputants.
It is noted that MRPL had filed a reply dated 20.02.2016 in which the jurisdictional issue appears to have been raised before the Council. This was clearly given up at the later stage as, concededly, this issue was not raised before the learned Single Judge - thus, the Council had the jurisdiction to refer the disputes under Section 18 of the 2006 Act to the arbitral tribunal.
Whether the present claims are tenable in the light of the No-Claim Certificate dated 25.09.2013 issued by the Claimant? - HELD THAT:- This area need not be delved upon since a petition preferred by MRPL under Section 34 of the Arbitration Act is pending adjudication.
Appeal disposed off.
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2024 (11) TMI 918
Seeking quashing of the Criminal Complaint - time limitation - it is contended that the subject complaint is time barred and filed beyond the stipulated time period provided under Section 142(b) of the NI Act - when did the limitation commence for filing the complaint and whether the time spent in pursuing the first complaint filed before the court in Gurugram could be excluded? - HELD THAT:- The primary accused being the company on whose behalf the subject cheques were issued, concededly, was served with a demand notice through email on 11.03.2022 itself. There is no averment from either side that the said email bounced back. The other two accused are the Directors in the accused company. A plain reading of Section 141 NI Act reveals that there is no requirement of serving each Director separately. The notice envisaged under Section 138 NI Act is required to be given to the drawer of the cheque i.e. the accused company in the present case to make good the sum payable under the cheque. A company being a juristic entity is run by living persons who are in charge of its affairs and who guide the actions of that Company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against.
Curiously in the present case, while the accused persons are claiming that the service of demand notice on the accused company be considered as service on its Directors as well, the complainant is contending otherwise - this Court has no hesitation to hold that the service of demand notice to the accused company on 11.03.2022 is effective service on petitioner No.2 as well - there is no dispute that petitioner No.3 was also served on 11.03.2022 itself through email.
Once it is held that service of demand notice on the company would be considered as a service on the other petitioners, the next issue as to what would be the starting period of limitation for filing complaint is simple calculation.
Indisputably, the said complaint was not accompanied with any application for condonation of delay. In reply of the petitioners‟ application seeking discharge, the complainant for the first time mentioned the factum of filing of complaint in court at Gurugram and its withdrawal. The said reply was filed on 31.03.2023. However, on date of taking cognizance on 02.08.2022, no such material was available before the trial court. The complaint being filed on 28.04.2022 without offering any explanation of delay or seeking its condonation was filed beyond the period of limitation and not maintainable.
The criminal complaint is quashed and the order taking cognizance is set aside - Petition allowed.
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2024 (11) TMI 874
Challenge to Award of the Labour Court - whether the appellant, as a family member of a land-loser, whose land was acquired for the Kaiga Atomic Power Project, had legally secured the job as the sonin- law, of the land-loser? - HELD THAT:- The relevant materials reflecting the marriage of the appellant with Smt. Ganga was however ignored by the Writ Court. The Court also failed to appreciate that the learned Labour Court reached the factual conclusion, after due consideration of the material evidence. Such factual finding of the Labour Court should not normally be disturbed by a Writ Court without compelling reason. Such reasons are absent. Therefore it is felt that the Award in favour of the appellant, granted by the Labour Court, was erroneously disturbed by the learned Single Judge.
The appellant is entitled to relief, in terms of the Labour Court’s Award dated 09.08.2012 with consequential service benefits. But allowing backwages may not be justified. It is therefore made clear that the reinstated employee, shall not be entitled to any back wages from 16.12.2020, when the learned Single Judge set aside the Award, till he is reinstated. However, the gap period i.e. 16.12.2020 till reinstatement, should be taken into account for all other service benefits. The appellant is ordered to be reinstated in service, within four weeks from today.
Appeal allowed.
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2024 (11) TMI 788
Grant of Anticipatory bail - Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case? - HELD THAT:- The Statement of Objects and Reasons accompanying the bill for introducing Section 438 in the CrPC indicates that the legislature felt that it was imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases. The purpose behind incorporating Section 438 in the CrPC was to recognise the importance of personal liberty and freedom in a free and democratic country. A careful reading of this section reveals that the legislature was keen to ensure respect for the personal liberty of individuals by pressing in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.
In KARTAR SINGH VERSUS STATE OF PUNJAB [1994 (3) TMI 379 - SUPREME COURT], a Constitution Bench of this Court held that there is no constitutional or fundamental right to seek anticipatory bail. In the said case, this Court was called upon to consider the constitutional validity of sub-section (7) of Section 20 of the Terrorists and Disruptive Activities (Prevention) Act, 1987. The Constitution Bench also looked into the validity of Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976 which deleted the operation of Section 438 of the CrPC in the State of Uttar Pradesh with effect from 28.11.1975.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], this Court emphasized that the applicant must have a tangible reason to believe. Vague apprehension will not do. Secondly, it held that the High Court or the Court of Session should not ask an applicant to go before the Magistrate to try his luck under Section 437 of the CrPC. It was also observed that once the accused is arrested, Section 438 of the CrPC ceases to play any role with reference to the offence or offences for which he is arrested. This Court also cautioned against passing a blanket order for anticipatory bail.
Thus, no useful purpose would be served by depriving the accused of exercising his statutory right to seek anticipatory bail till his release from custody in the first offence - there are force in the submission of the respondent that if the accused is not allowed to obtain a pre-arrest bail in relation to a different offence, while being in custody in one offence, then he may get arrested by the police immediately upon his release in the first case, even before he gets the opportunity to approach the competent court and file an application for the grant of anticipatory bail in relation to the said particular offence. This practical shortcoming in the approach taken by the Rajasthan High Court is prone to exploitation by investigating agencies for the purpose of putting the personal liberty of the accused in peril.
The procedure for arrest of the accused in relation to an offence after he is released from custody in the first offence would be similar to the procedure of arrest which is required to be followed in any other cognizable offence. However, we think it is necessary to shed some light on the procedure to effect arrest in the second category of cases, that is, where the investigating agency arrests the accused in relation to an offence while he is in custody in relation to a different offence.
An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the CrPC, as the case may be - There is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the court to grant anticipatory bail under Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Act, 1989, etc.
The present appeal must fail and the same is thereby dismissed.
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2024 (11) TMI 787
Levy of interest to the allottees on the amount paid by them at the rate of SBI’s Highest Marginal Costs of Lending Rate (MCLR) plus 2% with effect from 1 January 2018 till the date of handing over possession of subject apartments to the Respondents. Petitioner is also directed to pay costs of Rs. 10,000/- to the Respondents - whether Respondents could have filed an Appeal challenging the order of the Regulatory Authority, which according to the Appellant, is obtained on concession? - permissibility for the Appellate Tribunal to grant relief over and above the alleged concession made by Respondents before the Regulatory Authority.
HELD THAT:- Respondents clearly made a concession before the Regulatory Authority that they were willing to accept interest only on amounts paid after implementation of the RERA. However, before the Appellate Authority, Respondents insisted that no such concession was applied by them before the Regulatory Authority. If this was the position, proper course of action for the Respondents was to invite the attention of the Regulatory Authority by filing an application that their concession was erroneously recorded. However, admittedly no such application was filed by the Respondents. Instead, they were advised to challenge the order of the Regulatory Authority by filing the Appeal under section 44 of the Act before the Appellate Tribunal. The Appeal was apparently filed on 27 January 2021 before the Appellate Tribunal. During gap between 25 November 2020 and 27 January 2021, the Respondents did not complain before the Regulatory Authority that their concession was erroneously recorded in paragraph 9 of the order.
Thus Respondents neither filed an application before the Regulatory Authority complaining about erroneous recording of the concession in paragraph 9 of the order nor they did raise any specific ground in the Appeal about erroneous recording of such concession. Thus, the Appellate Authority did not have before it any pleading to the effect that the order was not obtained by Respondents by consent. It therefore really became questionable as to how the Appellate Authority could have entertained the Appeal filed by the Respondents. It is only when the Appeal was argued before the Appellate Tribunal, that Respondents sought to retract from the concession made before the Regulatory Authority.
The first reason recorded by the Appellate Tribunal for believing that Respondents did not make any concession is the absence of any whisper in para 6 of the Order about project facing any financial crisis. Since the plea of the Advocate of the Appellant about project facing financial crisis is not noticed by the Appellate Tribunal in paragraph 6 of the Regulatory Authority’s order, it has held that the assumption on the part of the Regulatory Authority about liquidity crisis was erroneous.
The second reason recorded by the Appellate Tribunal for believing the plea of Respondents about not making concession is nonaudibility of Appellant’s advocate during the course of hearing due to technical glitches and she making her submissions subsequently vide email dated 24 November 2020. The Appellate Tribunal has therefore assumed that at the time when the Appeal was actually heard, the advocate of Appellant was not even audible and there was no occasion for the Authority to know any plea of project facing liquidity crisis. Appellate Tribunal has therefore held that since Regulatory Authority itself was not appraised about any liquidity crisis, there was no occasion for it to give any explanation to Respondents - even the second reason of the recording by the Appellate Authority for believing the plea of the Respondents about not making concession before the Regulatory Authority is totally perverse.
The judgment and order passed by the Appellate Authority suffers from palpable error. It has committed a jurisdictional error in entertaining the Appeal filed by the Respondents without they first moving Regulatory Authority to seek a clarification in respect of the concession recorded in paragraph 9 of the order. The second error committed by the Appellate Tribunal is in entertaining oral plea of not making concession before Regulatory Authority in absence of the pleading in the Appeal Memo.
The judgment and order passed by the Appellate Tribunal is indefensible and is liable to be set aside. The Appeal accordingly succeeds.
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2024 (11) TMI 710
Review Jurisdiction - error apparent on the face of record or not - Suit for specific performance was partially decreed by directing the registration of the suit property in favour of the petitioner proportionate to the extent of the consideration paid - Doctrine of Lis pendens - HELD THAT:- The petitioner was ready and willing to perform the contract in terms of Section 16(c) of the Specific Relief Act. The first agreement to sell noted that the purchaser paid a sum of Rs.11,30,00 as earnest money. Subsequently, the petitioner paid Rs. 13,00,000 on the same day by cheque and paid another Rs. 5,00,000 by Demand Draft on 9 April 1997. If the petitioner was unwilling to perform the contract, he would not have paid nearly 75 percent of the sale consideration. Thus, the petitioner with the payment of the additional sum above the earnest money, has proved his readiness and willingness to perform the contract. Further, this aspect must be analysed in the backdrop of the explanation to Section 16(c) of the Specific Relief Act which states that if the contract involves the payment of money, it is not necessary that the plaintiff actually tenders the money. It cannot be concluded that the petitioner was not ready or willing to perform his part of the contract merely because the balance sale consideration was due to be paid.
Section 10, before the amendment in 2018 stated that the Court can exercise its discretion to award specific performance of contract where (a) there exists no standard for ascertaining the actual damage caused by the nonperformance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. The Explanation provided that unless there is anything to the contrary, the court shall presume that the compensation in money is not an adequate relief for the breach of a contract to transfer immovable property. There is nothing in the agreements to sell to rebut this statutory presumption. On an application of the facts to the principles in Sections 10 and 16 of the Specific Relief Act, it is opined that this is a fit case for this Court to exercise its discretion to direct specific performance.
Doctrine of Lis pendens - HELD THAT:- The doctrine of lis pendens that Section 52 of the Transfer of Property Act encapsulates, bars the transfer of a suit property during the pendency of litigation. The only exception to the principle is when it is transferred under the authority of the court and on terms imposed by it. Where one of the parties to the suit transfers the suit property (or a part of it) to a third-party, the latter is bound by the result of the proceedings even if he did not have notice of the suit or proceeding.
The purpose of lis pendens is to ensure that the process of the court is not subverted and rendered infructuous. In the absence of the doctrine of lis pendens, a defendant could defeat the purpose of the suit by alienating the suit property. This purpose of the provision is clearly elucidated in the explanation clause to Section 52 which defines “pendency”. Amending Act 20 of 1929 substituted the word “pendency” in place of “active prosecution”. The Amending Act also included the Explanation defining the expression “pendency of suit or proceeding”. “Pendency” is defined to commence from the “date of institution” until the “disposal”. The argument of the respondents that the doctrine of lis pendens does not apply because the petition for review was lying in the registry in a defective state cannot be accepted.
The review proceedings were “instituted” within the period of limitation of thirty days. The doctrine of lis pendens kicks in at the stage of “institution” and not at the stage when notice is issued by this Court. Thus, Section 52 of the Transfer of Property Act would apply to the third-party purchaser once the sale was executed after the review petition was instituted before this Court. Any transfer that is made during the pendency is subject to the final result of the litigation.
Having concluded that the errors apparent on the face of the record identified above go to the root of the reasoning on both the issues of limitation and specific performance, the judgment of this Court dated 25 August 2022 is recalled. The judgment of the High Court dated 23 April 2021 is restored.
The review petitions are allowed.
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2024 (11) TMI 709
Dishonour of Cheque - challenge to summoning order - appellant contended that the complaint filed was not premature, as it was within the limitation period of one month from the cause of action - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- On reading of proviso (c) to Section 138 as well as clause (b) of sub-section (1) of Section 142 of the N.I. Act, it becomes clear that the cause of action for the complainant to maintain a complaint arises when within fifteen days from the receipt of the notice issued by the complainant, there is no payment of the amount stated in the cheque which has been dishonoured. On the said cause of action arising, a complaint would be maintainable within a period of one month as per clause (b) of sub-section (1) of Section 142 of the N.I. Act.
In the instant case, the legal notice was issued on 30.09.2019 which was received by the respondent No.2 on 01.10.2019, but a reply was given on 16.10.2019. There was no payment of the amount which was stated in the cheque which was dishonoured. Consequently, within a period of one month from 16.10.2019, the appellant had the right to maintain the complaint. In the instant case, the complaint was filed on 23.10.2019, which is within the period of limitation as prescribed in clause (b) of sub-section (1) of Section 142 of the N.I. Act. The High Court, therefore, fell in error in holding that the complaint was premature by construing the date 16.10.2019, on which the reply was sent by respondent No.2-accused as the date from which limitation period of one month had to be calculated. This is contrary to clause (b) of sub-section (1) of Section 142 of the N.I. Act.
The impugned order passed by the High Court is set aside and the summoning order dated 09.12.2019 is revived - Appeal allowed.
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2024 (11) TMI 708
Dishonour of Cheque - challenge to conviction and sentence under Section 138 of the Negotiable Instrument Act - it is alleged that judgment is based on conjectures and surmises - contradictions in the Complaint and the evidence - only defence that has been put forth by the petitioner is that he had returned the loan amount in cash though, without any acknowledgment - HELD THAT:- The learned Metropolitan Magistrate as well as the learned ASJ, have rightly observed that though a plea of having return the amount in cash, has been taken but the petitioner has not able to prove it by any cogent evidence. He admittedly has no acknowledgement of repayment of loan from the respondent and has also not been able to explain why he did not take back the cheques from the respondent No. 2, at the time when he made the alleged repayment. It has been rightly held that the petitioner has not been able to discharge the presumption against him under Section 139 of N.I. Act read with Section 118 of the Indian Evidence Act.
So far as the objection taken in regard to the loan being taken in cash being violative of the Income Tax Act is concerned, it is the respondent No. 2 may be liable for prosecution under Income Tax Act but in view of the categorical admissions of the petitioner of having taken a cash of Rs. 15,00,000/-, he cannot avoid his liability under Section 138 of N.I Act.
The petitioner in the present Revision Petition, has not been able to agitate any ground which entitles him to any interference in his conviction and sentence. There is no merit in the present Revision, which is hereby dismissed.
Revision dismissed.
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2024 (11) TMI 707
Classification of the account of the borrower as NPA - Was the account of the borrower NPA as on the date of classification of the same? - Is the transfer of the financial asset by the State Bank of India (SBI) to the Asset Reconstruction Company (ARC) valid? - What reliefs are the parties entitled to? - HELD THAT:- The date on which the account should be considered as NPA or not for a sale under Section 5 of the Act of 2002, in the facts and circumstances of the present case, would be the date of publication of the web notice and need not be pinned to the date of NPA mentioned in the notice under Section 13 (2) - the action of SBI in putting up the financial assets for sale and ultimately assigning the same in favour of the ARC cannot be faulted. It did not violate any binding Directions of RBI in doing so.
In the facts and circumstances of the present case, the borrower did not reply to the notice under Section 13 (2) of the Act of 2002 dated July 8, 2022. Section 13 (3-A) of the Act of 2002 has obliged the secured creditor to consider the representation or objection of a borrower to a notice under Section 13 (2) of the Act of 2002 and if the secured creditor concludes that such representation or objection is not acceptable, to communicate within 15 days of the receipt of such representation or objection the reason for non-acceptance of the representation or objection of the borrower - Unlike a civil suit filed under Order 37 of the Code of Civil Procedure, 1908, or a suit filed for compensation on account of storage, which does not statutorily empower the recipient of a demand notice to respond to and the issuer of such demand notice to deal with the response within a specified time, a notice under Section 13 (2) of the Act of 2002 can be responded to by the borrower and the secured creditor who has issued such notice is obliged to inform the reasons as to non-acceptance or non-tenability of the objection within the specified period of 15 days from the date of receipt of the response.
Not responding to a notice under Section 13 (2) of the Act of 2002 raises a rebuttable assumption that the borrower has accepted the default in repayment of secured debt and the classification of the account as NPA. This presumption being rebuttable, the borrower can do so by making a representation or raising an objection under Section 13 (3-A) of the Act of 2002. The borrower who has not responded under Section 13 (3-A) can nonetheless rebut the presumption in a proceeding under Section 17 of the Act of 2002. When a measure under Section 13(4) is taken. A measure under Section 13(4) can be taken only after a notice under Section 13(2) has been issued and a response given by the lender to a reply of the borrower under Section 13(3-A) of the Act of 2002. The borrower has to rebut the presumption that the account was not NPA after the secured creditor has issued a notice under Section 13 (2) of the Act of 2002, for it to succeed in any action taken by the Bank or financial institution under the Act of 2002.
In the facts and circumstances of the present case, SBI has proceeded under Section 5 of the Act of 2002 and not under Section 13(4) thereof. In any event, the borrower has failed to discharge the burden of proof rebutting the presumption that the account became NPA on the date of the web notice which is February 10, 2023.
The account of the borrower was classified as a Non-Performing Asset (NPA) on the relevant date - the transfer of the financial asset by the State Bank of India (SBI) to the Asset Reconstruction Company (ARC) is valid - the impugned judgement and order dated October 5, 2023 set aside - appeal allowed.
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