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Indian Laws - Case Laws
Showing 121 to 140 of 26755 Records
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2024 (9) TMI 1299
Seeking appointment of a Sole Arbitrator to adjudicate the disputes between the Petitioners - Section 11(6) read with Section 11(9) of the Arbitration and Conciliation Act, 1996 - whether the SRG Group, being a non-signatory to the FAA, should also be referred to arbitration along with the AMP and JRS Groups? - HELD THAT:- The issues in the first category have to be mandatorily decided by the Chief Justice or his designate under Section 11 of the Act, 1996. This included the question whether there is an arbitration agreement and whether the party that has applied under Section 11 is also a party to such an agreement.
The crucial question that arose for consideration by this Court in Duro Felguera S.A. v. Gangavaram Port Limited [2017 (10) TMI 1304 - SUPREME COURT] was the effect of the change introduced by the 2015 Amendment to the Act, 1996 which inserted Section 11(6A). The Court held that all that needs to be looked into is whether the agreement contained a Clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement i.e., the existence of the arbitration agreement, nothing more, nothing less.
A two Judge-Bench of this Court in Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. [2019 (4) TMI 716 - SUPREME COURT] considered the effect of Section 11(6A) which confined the jurisdiction of the Court to examine the “existence of an arbitration agreement” on an arbitration agreement contained in an unstamped document or contract. The Court was of the opinion that its enquiry as to whether a compulsorily stampable document, which contains the arbitration clause, is duly stamped or not, is only an enquiry into whether such an arbitration agreement exists in law and this does not in any manner amount to deciding “preliminary question(s)” that arise between the parties.
The recent Constitution Bench decision of this Court in Cox and Kings Limited v. SAP India Private Limited and Another [2023 (12) TMI 427 - SUPREME COURT (LB)], specifically dealt with the question of impleading a non-signatory as a party in the arbitration proceedings and the corresponding scope of enquiry at the referral stage. It was held therein that Section 16 is an inclusive provision which comprehends all preliminary issues touching upon the jurisdiction of the arbitral tribunal and the issue of determining parties to an arbitration agreement goes to the very root of the jurisdictional competence of the arbitral tribunal.
This Court took the view that the referral court is required to prima facie rule on the existence of the arbitration agreement and whether the non-signatory party is a veritable party to the arbitration agreement. However, recognising the complexity of such a determination, the arbitral tribunal was considered the proper forum since it can decide whether the non-signatory is a party to the arbitration agreement on the basis of factual evidence and application of legal doctrine.
The fact that a non-signatory did not put pen to paper may be an indicator of its intention to not assume any rights, responsibilities or obligations under the arbitration agreement. However, the courts and tribunals should not adopt a conservative approach to exclude all persons or entities who intended to be bound by the underlying contract containing the arbitration agreement through their conduct and their relationship with the signatory parties. The mutual intent of the parties, relationship of a non-signatory with a signatory, commonality of the subject matter, composite nature of the transactions and performance of the contract are all factors that signify the intention of the non-signatory to be bound by the arbitration agreement.
Considering the complexity involved in the determination of the question whether the SRG Group is a veritable party to the arbitration agreement or not, it would be appropriate for the arbitral tribunal to take a call on the question after taking into consideration the evidence that may be adduced by the parties before it and the application of the legal doctrine as elaborated in the decision in Cox and Kings [2023 (12) TMI 427 - SUPREME COURT (LB)].
Mr. Akil Kureshi (Former Chief Justice, High Court of Rajasthan) is appointed to act as the sole arbitrator. The fees of the arbitrator including other modalities shall be fixed in consultation with the parties - petition allowed.
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2024 (9) TMI 1243
Payment of illegal gratification - Conspiracy - offences punishable under Section 120 B of the Indian Penal Code and Sections 7,12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 - HELD THAT:- A perusal of the charge sheet shows that the allegation is about payment of illegal gratification of Rs.58,000/-, Rs.3,50,000/- and Rs.1,50,000/- respectively, on behalf of the said company to officials of the customs department to procure benefits to its customers. As regards the allegation regarding the payment of Rs.58,000/-, the case is that accused no.1- Mehul Jhaveri paid the said amount to another accused, Chandubhai Kalal. The charge sheet contains no allegation against the respondent to connect him with the payment. The allegations of being part of a criminal conspiracy are made against the respondent. As regards payment of illegal gratification of Rs.3,50,000/- and Rs.1,50,000/- respectively paid to Anand Singh Mall, in the charge sheet, the allegation against the respondent is that the respondent in conspiracy with Mehul Jhaveri abetted the offence of bribery and arranged for payment of illegal gratification of Rs.3,50,000/- to Anand Singh Mall at Delhi through one Kishan Rajwar, who happens to be the respondent's nephew. Further allegation is that Mehul Jhaveri, in conspiracy with the respondent and one Dushyant Mulani, arranged to deliver illegal gratification of Rs.1,50,000/- to Anand Singh Mall in Mumbai.
The prosecution is not relying upon any telephonic conversation between the respondent and any of the coaccused or the person to whom illegal gratification was allegedly paid.
The High Court has examined the statements of the witnesses and documents which were a part of the charge sheet. The High Court has observed that in the diary entries made by accused no.1, the word “Dilipbhai” has been mentioned at the top. Against the entries of the amounts of Rs.3,50,000/- and Rs.1,50,000/-, the letters DM have been mentioned. However, no witness stated that the letters DM meant the respondent, not Dushyant Mulani. As pointed out earlier, in reply to the discharge application, the appellant admitted that letters DM refer to Dushyant Mulani and not the respondent.
Therefore, except for the bald allegation of participation in the alleged conspiracy without giving any details of the conspiracy, the respondent has been roped in the charge sheet. His name did not appear in the First Information Report. Taking the material forming part of the charge sheet as true, it cannot be said that a prima facie case of involvement of the respondent was made out. In the circumstances, we find no error in the view taken by the High Court when it discharged the respondent.
Appeal dismissed.
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2024 (9) TMI 1242
Dishonour of Cheque - petitioner was not the Director of the Company when the loan was taken - vicarious liability of the petitioner - HELD THAT:- The criminal complaint has been filed under Section 138 read with Section 141 of the NI Act. The petitioner has been impleaded in the capacity of Director of the accused company. The present petition is accompanied by Form No. DIR-11 and DIR-12. The said documents i.e. DIR-11 and DIR-12 indicate that the petitioner was appointed as an Additional Independent Non-Executive Director on 26.02.2020 and that he resigned on 08.12.2021.
The issue whether requisite allegations are to be made against Directors and more particularly against the Directors who are Additional Independent Non-Executive, has come up before the Supreme Court in a catena of decisions. In POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT] the Supreme Court, while following the ratio of the decision in NATIONAL SMALL INDUSTRIES CORPN. LTD. VERSUS HARMEET SINGH PAINTAL [2010 (2) TMI 590 - SUPREME COURT] made the observations with regard to fastening vicarious liability on Directors who are not in charge of day-to-day affairs of the company.
Coming to the facts of the present case, a reading of the complaint would show that the same is bereft of any specific allegations as to how being an Additional Independent Non-Executive Director, the petitioner (arrayed as accused No.4 in the complaint) was incharge of day-to-day affairs and conduct of the business of the accused company. The complaint itself is accompanied by the Master Data of the company, which did not reflect the name of the petitioner as a Director. Even if the Annual Report for the Financial Year 2020-21 of respondent No. 3 is to be considered, it brings to the notice the fact that during all the Nine (9) Board Meetings held during the Financial Year 2020-21 and of the Annual General Meeting held on 31.12.2020, none of it were attended by the petitioner which goes to show that he was not involved in day-to-day affairs of the accused Company.
Thus, it is the conceded case of the complainant that the petitioner was not the Director on the relevant date. The case of the petitioner squarely falls in the ratio of the aforenoted binding precedents. In the totality of the facts and circumstances, the petitioner cannot be made responsible for the dishonour of cheques, and the continuation of the criminal complaint against him would be nothing but an abuse of the process of law.
The criminal complaint filed against the petitioner is quashed - Petition allowed.
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2024 (9) TMI 1241
Dishonour of Cheque - liability of petitioner and legality of proceedings against him - HELD THAT:- Admittedly the petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question and therefore proceedings initiated under Section 138 of the Negotiable Instruments Act against the petitioners are nothing but sheer abuse of process of the Court and while passing the order of issuance of process against the petitioners, the learned Court concerned has committed an error, which warrants interference by this Court.
It is also pertinent to note that respondent No.2 and his wife have also filed one suit before the concerned Court against the present petitioners and others and in the said suit original accused Nos. 1 to 8 are not impleaded as party and no relief is sought against them. It is not in dispute that original accused No.6 is the authorized signatory of accused No.1 - partnership firm i.e. Shri Siddhivinayak Associates and accused nos. 2 to 8 are the partners of the said partnership firm.
If the allegations levelled against the petitioners in the complaints filed under Section 138 of the Negotiable Instruments Act are taken at its face value and accepted in their entirety, they do not constitute the offence alleged, insofar as the present petitioners are concerned. It is well settled that when the instrument is signed by the authorized signatory of a partnership firm, the prosecution under Section 138 of the Negotiable Instruments Act can be instituted against the persons, who were in-charge and responsible for the conduct of the business of the partnership firm at the relevant time when the offence was committed - without going into the further details of the matter, only on the ground that petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question, the present petitions are required to be allowed.
The proceedings pending in the Court of Additional Chief Judicial Magistrate, Ahmedabad (Rural) are quashed qua the petitioners - Petition allowed.
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2024 (9) TMI 1240
Dishonour of Cheque - security cheques - seeking quashing of the Summoning Order - HELD THAT:- From the bare perusal of the Complaint under Section 138 of NI Act, 1881 and the submissions made by the petitioner in the present petition, it is evident that admittedly the aforementioned two cheques were given by the petitioner, which on presentation got dishonoured for insufficiency of funds.
It is the defence of the petitioner that the said two cheques were given as a security cheques which were to be encashed only if the pledged goods were not delivered. However, the pledged goods i.e., Sarso Seeds got stolen and the FIR bearing No. 710/2018 under Section 188 of the Indian Penal Code, 1860. It is further the defence of the petitioner that the ledger accounts on which the respondent No. 2-complainant has relied, are not correct.
It is quite evident from the submissions made that there is no denial to the issuance of the cheques and its subsequent dishonour on the ground of insufficiency of funds - All the contentions raised by way of present petition are, in fact, the defence of the petitioner which are required to be proved during the trial.
There is no infirmity in the impugned Summoning Order dated 29.11.2018 passed by the learned Metropolitan Magistrate - Petition dismissed.
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2024 (9) TMI 1239
Dishonour of Cheque - Vicarious liability of non-executive director in a company - HELD THAT:- It is not disputed that the Petitioner herein is a Non-Executive Director of ATT. While dealing with the nature of averments that are required against a Non-Executive Director while filing a complaint under Section 138 NI Act, the Apex Court in POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT] has observed 'the law laid down by this Court is that for making a Director of a company liable for the offences committed by the company under Section 141 of the NI Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the company.'
The Coordinate Bench of this Court while dealing with the case of Ms. Poonam Singh, who is accused No. 4 in the complaint filed by the Respondent, has not seen as to whether Ms. Poonam Singh is a Non-Executive Director or a regular Director. There is no discussion in the judgment of the Coordinate Bench regarding this aspect - In the present case it was specifically pleaded that the Petitioner is a non-executive Director and is not responsible for the day-to-day affairs of the company. Form DIR-12, which has been placed and the veracity of which has not been denied, shows that the Petitioner is a non-executive director. In the entire complaint there is no averment as to whether the Petitioner herein was involved in the loan transaction or not and as to whether the Complainant has dealt with the Petitioner at any point of time or not.
This Court is of the opinion that the case of the Petitioner herein is distinguishable from that of Ms. Poonam Singh inasmuch as the Petitioner herein is a Non-Executive Director and without any specific averment against the Petitioner herein in the complaint filed by the Respondent herein as to whether the Petitioner herein is involved in the loan transaction or not and as to whether the Complainant has dealt with the Petitioner at any point of time or not, the complaint against the Petitioner herein cannot be permitted to continue.
Petition disposed off.
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2024 (9) TMI 1238
Dishonour of Cheque - acquittal of the sole respondent - discharge of burden under Section 139 of the Negotiable Instruments Act - HELD THAT:- Evidently, in the case on hand, the prosecution discharged its burden to prove the requirement of Section 138 of the Negotiable Instruments Act. The sole respondent admitted that his signed cheques were misused. However, no evidence was led to prove this fact, therefore, presumption would be there in favour of the complainant that the cheque was issued by the accused for payment of the existing dues.
The trial court has wrongly relied on some of the lapses on the part of the complainant to disbelieve that the complainant proved the cheque under Section 138 of the Negotiable Instruments Act and wrongly held that the accused has already discharged its burden under Section 139 of the Negotiable Instruments Act only for certain lapses of the complainant. This case is squarely covered by the dictum in RAJESH JAIN VERSUS AJAY SINGH [2023 (10) TMI 418 - SUPREME COURT]. Hence, judgment relied upon by the learned counsel for the respondent is not applicable in the facts and circumstances of this case.
The judgment of acquittal dated 24.8.2022 passed in Criminal Case No. 258/2016 by learned Special Metropolitan Magistrate, NI Act, Jodhpur stands hereby set aside and the sole respondent is convicted for the offence under Section 138 of the Negotiable Instruments Act - Considering the mitigating and aggravating circumstances appearing in this case as well as the fact that no previous conviction is there against the sole respondent, 2 months simple imprisonment is awarded alongwith fine of the cheque amount plus 30% of the same as compensation to be payable within a month, failing which, the said amount would be recoverable according to law prescribed for recovery of fine.
Criminal appeal allowed.
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2024 (9) TMI 1017
Dishonour of Cheque - funds insufficient - legally recoverable debt or not due to limitation - acquittal of the accused/respondent - HELD THAT:- The Supreme Court in A.V. Murthy v B.S. Nagabasavanna [2002 (2) TMI 1214 - SUPREME COURT] recognized the application of Section 25 (3) of the ICA while disallowing a dismissal of a complaint under section 138 of NI Act, at the behest of a complainant, where a cheque had been given for a liability which was time-barred, it was held that 'Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract.'
The Supreme Court in S. Natarajan v Sama Dharman & Anr. [2014 (7) TMI 1330 - SUPREME COURT] expressed the opinion that, the High Court had erred in quashing the complaint under section 138 NI Act, on the ground that debt or liability was barred by limitation since that question can be decided only after evidence has been adduced being a mixed question of law and fact.
In assessing limitation, the Trial Court determines the date of loan as approximately 30th April 2012 (para 40 of the impugned order), taking the period of limitation to April 2015. Cheque in question was issued on 31st December 2015 and therefore, the Trial Court held in favour of the accused, that they were able to rebut the statutory presumption that there was no legally enforceable debt.
Considering that the Trial Court has considered the evidence, the principles in S. Natarajan & Yogesh Jain may not be fully applicable at this stage. The matter is now in appeal against the acquittal and the Court has perused the evidence on record. Based on the analysis above and that the Trial Court itself found it unbelievable that a cheque of Rs. 3,50,000/- would be given in 2015, despite the accused having asserted in the trial that he had repaid the debt of the father, the only question remains is on the legal enforceability of the debt.
The furnishing of a cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under section 25 (3) of ICA. The original debt therefore, through section 25 (3) of the ICA, becomes legally enforceable to the extent of the amount the cheque has been given - Drawing of the cheque in itself, is acknowledgment of a debt or liability. It is the resurrection or the revival of the prior debt which would trigger the provisions under section 138 of NI Act. To deny a complainant/drawee of invoking the penal provisions under section 138 of NI Act, despite the categorical premise of section 25 (3) of the ICA recognizing a fresh agreement to pay, would be an unfortunate disentitlement.
Impugned order dated 31st July 2017, acquitting the respondent no. 2, is set aside - List on 7th October 2024 for further directions. Respondent no. 2 be present on the next date scheduled.
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2024 (9) TMI 1016
Seeking grant of anticipatory bail - offence u/s 420, 477-A, 467 and 409 read with 34 of the Indian Penal Code, and Section 3 of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 - allegation of receiving embezzled sum of money - HELD THAT:- It is not in dispute that the investigation is almost complete, and the documents related to the crime consist of bank records. Additionally, there is no dispute that the applicant was involved in the trade of medical equipment and oxygen concentrators. Notably, one of the co-accused has already been granted bail by this Court. The applicant is ready to deposit Rs.22,00,000/- in the trial Court to show his bona fides. Prima facie, there is material to suggest that the applicant received the money through legitimate business transactions, as tax invoices were issued, and GST payments were made to the GST department. Furthermore, the transactions were conducted exclusively through the Bank.
This Court is inclined to allow the present application - In the event of the applicant's arrest in CR No.811 of 2021, registered at Akluj Police Station, Solapur and investigated by EOW, Solapur, he shall be released on bail upon furnishing a PR Bond of Rs.25,000/- with one or two solvent sureties in the like amount, subject to the condition that the applicant shall deposit an amount of Rs.22,00,000/- in the trial Court within two weeks from today. The trial Court, however, shall not allow the withdrawal of this amount until the conclusion of the trial - Application allowed.
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2024 (9) TMI 1015
Seeking a direction for numbering and taking on file of the petition filed by the petitioners/defendants for setting aside the exparte order, under Order IX Rule 7 of CPC, pending on the file the Principle District Court (Commercial Court) at Chengalpattu - HELD THAT:- In view of Section 13 of the Commercial Courts Act, the appeal will lie only for the orders passed by the Commercial Court Act, that has been specifically enumerated under Order 43 of CPC. But, in the Order 43 of CPC, there is no provision for appeal, to set aside the exparte order under Order IX Rule 7 CPC. In such circumstances, since the Commercial Courts Act, does not preclude the applicability of Order IX Rule 7 of CPC in the commercial suit, the impugned order of return, passed by learned Principal District Judge, Chengalpattu, dated 18.12.2023 is liable to be set aside.
The impugned returned order, dated 18.12.2023 is set aside. The learned Principal District Judge, Chengalpattu is directed to take on file the petition filed by the petitioners under Order IX Rule 7 and dispose of the same on merits.
This civil revision petition is allowed.
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2024 (9) TMI 917
Dishonour of Cheque - mandatory enquiry in respect of accused person - Rejection of prayer of the petitioner for conducting an enquiry under Section 202 of the CrPC and fixing a date for cross-examination of P.W. 1.
Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 is mandatory in nature while conducting an enquiry under Section 202 of the CrPC before issuing process under Section 204 of the CrPC to an accused, who resides beyond the territorial jurisdiction of the Court of the Trial Magistrate? - Whether Section 202 of the CrPC is applicable in a case of the Court complaint filed under Sections 138 read with Section 142 of the NI Act, 1881 even supported by an affidavit by the Public Servant?
HELD THAT:- It is admitted facts that the petitioner resides beyond the territorial jurisdiction of the Court concerned. There is no dispute with regard to the address. Accordingly, it would be necessary to assert whether the Learned Trial Magistrate should follow the provisions of sub-section (1) of Section 202 of the CrPC and for that this Court relied a judgment placed by the opposite parties passed in S. S. Binu v. State of West Bengal and another [2018 (5) TMI 2157 - CALCUTTA HIGH COURT] where the Division Bench observed 'keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202, Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer.
This Court finds that the Learned Chief Metropolitan Magistrate has carefully perused the complaint supported by an affidavit and documents, taken cognizance and further transferred the case to Learned Metropolitan Magistrate, 16th Court for enquiry and disposal under Section 192 (1) CrPC - And finally satisfied that there are sufficient grounds for proceeding against the accused person under Section 138 read with Section 142 of the N.I. Act, 1881 and issued summon to the accused person. Moreover, accused person appeared through his learned Advocates. On 12.09.2019, a plea under Section 251 of the Code of Criminal Procedure was taken and the matter was fixed for evidence. The complainant was examined on 04.12.2019 and 20.01.2021 and the matter was fixed for cross-examination. Thereafter, at the stage of cross-examination, the accused person filed petition after more than a year on 05.04.2022 for examination under Section 202 of the CrPC.
Revision dismissed.
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2024 (9) TMI 916
Seeking forbearance on respondents 1 to 5 from permitting installation of huge amusement rides by the respondents 11 and 12 or any other persons by damaging the river bed of Vaigai River at Paramakudi by installing huge amusement rides of 48 in number - HELD THAT:- On perusing the reason that has been given by the Public Works Department in the rejection order dated 26.02.2024, it is appealing, because even for drinking water purpose, if water is released from Vaigai dam to Ramanathapuram District, there is a likelihood of flood of water in the Vaigai River. Therefore, if in the River, these kind of amusement activities are taken place by erecting these amusement equipments of nearly about 50 or more, as another person seems to have obtained similar order today from the Writ Court in danger, where it may be for drinking water purpose or even there may be a flash flood due to heavy rain, suddenly if it is taken place, which will be endanger to the public, who participate in the festival by using these amusement equipments.
Since the festival is going to be commenced by 20.04.2024, immediate action shall be taken by the respondents, for which, full co-operation shall be given by the private respondents, who want to establish such amusements rides. The afore said arrangement shall be made, as early as possible, preferably, before 22.04.2024.
Petition disposed off.
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2024 (9) TMI 915
Seeking rescheduling of the CA Intermediate and Final Examinations to the second week of June, 2024 - Ubi jus ibi remedium - HELD THAT:- Ubi jus, goes the adage, ibi remedium. A remedy can only follow a right. The hope that the law can be a panacea for every difficulty faced by every citizen in this country, though a cherished ideal, must remain, at the end of the day, Utopian.
The mere fact that certain individual candidates may face a hardship in undertaking it cannot constitute the basis for this Court to derail the entire CA Intermediate, or Final, examination, which presently is to be undertaken by as many as 4,36,246 candidates. Indeed, this Court is surprised that such a request has even been made.
The respondent has taken care to ensure that no examination is held either on the date of elections or on the date immediately prior thereto. The elections are to be held on 7th and 13th May 2024 and there is no examination scheduled for 6th, 7th, 12th or 13th of May 2024. None of the other dates, for which the examinations are scheduled, conflict in any way, or are even proximate, to the dates on which the elections are to be held.
The respondent has, therefore, been proactive and ensured that the right of the candidates, who are to undertake the examinations, to cast their votes, is not affected by conducting of the examinations. The scheduling of the examination has been so done as to ensure that an individual candidate is able, should she so desire, to cast her vote and undertake the examination. No more can be expected of the respondent. It is for the individual candidates now to work out their schedules, and adjust their itineraries accordingly.
The petitioners are less than fair to the security administration in place, in their rather bleak prediction that there is likely to be chaos, commotion and violence during elections. General elections are periodically held, and the Court has, given past experience, no reason what so ever to doubt the capacity, or the capability, of the security machinery in place, to ensure that the elections take place in a free and fair atmosphere.
The comparison between candidates who are undertaking the examination this year and those who undertook the examination in other years when there were no elections, is completely alien to Article 14. They are neither identically, nor even similarly, situated. Article 14 forbids discrimination amongst equals, not unequals. No plea of discrimination can be based on a comparison between candidates undertaking examinations during election year and others. Else, there would have to be an absolute proscription on holding of examinations during election year altogether.
The plea of violation of Article 21 is based on the prediction, of the petitioners, that the entire nation is bound to be in a state of turmoil during elections. There is no basis for this presumption.
It is clear on the face of it that this petition is completely bereft of substance. The petition is accordingly dismissed.
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2024 (9) TMI 761
Accused in a complaint under Section 138 of Negotiable Instruments Act, pending trial seeking for production of Income Tax particulars and GST particulars of the complainant - HELD THAT:- The trial Court after considering the prayer to putforth probable defence to rebut statutory presumption, production of Income Tax returns for the financial year 1920 is necessary and hence allowed the petition partly. In so far as GST Statement, the trial Court has observed that the complainant's firm is not a registered firm under GST Act as per the statement of the complainant and therefore there is no necessity to direct the complainant to produce documents.
This Court confirm the order of the trial court. Further hold that transaction between the complainant and the accused is not in connection with any business dealing. Therefore, there is no necessity for production of GST Accounts to the accused person. Hence, this Criminal Original Petition is dismissed.
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2024 (9) TMI 760
Release of a seized vehicle on Superdari - concealent of illicit liquor of a large quantity in the vehicle - HELD THAT:- The petitioner is facing the prosecution under Section 52(2) of Delhi Excise Act, 2009. The issue before this Court is not to determine the merits of that prosecution but only to consider whether the vehicle in question can be released on Superdari to the petitioner, and if so, on what conditions, and whether the conditions which have been imposed by the Financial Commissioner by the Impugned Order, deserve any modification.
The purpose of seeking surety while releasing the same on Superdari is only to ensure that the vehicle is produced before the learned Trial Court as and when directed. In SUNDERBHAI AMBALAL DESAI VERSUS STATE OF GUJARAT [2002 (10) TMI 773 - SUPREME COURT], the Supreme Court directed that where a vehicle is seized, it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security “for return of the said vehicles, if required at any point of time.” It held that it is of no use to keep such vehicles seized at the police stations for a long period.
In the facts of the present case, there is no opposition to the release of the vehicle in question on Superdari to the petitioner. The only issue is of the reasonable conditions that should be imposed on the petitioner for the same. In my opinion, the object of releasing the vehicle on Superdari can be achieved by directing the petitioner to give a surety of Rs.1 lac. As far as the undertaking that the bus shall not be used for similar offence for a period of one year, in my opinion, there is no warrant in law for the said condition to be imposed.
The impugned order records that in case the vehicle is not found to be involved in any other case of a similar nature for one year from its release, the surety shall stand discharged. The said condition shall continue to operate.
Petition dispsoed off.
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2024 (9) TMI 688
Seeking appointment of an arbitrator for the adjudication of disputes and claims - Section 11(6) read with Section 11(12)(a) of the Arbitration & Conciliation Act, 1996 - whether the application of the petitioner for the appointment of an arbitrator deserves to be allowed? - HELD THAT:- In a recent decision in SBI GENERAL INSURANCE CO. LTD. VERSUS KRISH SPINNING [2024 (9) TMI 606 - SUPREME COURT], it was observed that the arbitral tribunal is the preferred first authority to look into the questions of arbitrability and jurisdiction, and the courts at the referral stage should not venture into contested questions involving complex facts.
The respondents have raised a number of objections against the present petition, however, none of the objections raised question or deny the existence of the arbitration agreement under which the arbitration has been invoked by the petitioner in the present case. Thus, the requirement of prima facie existence of an arbitration agreement, as stipulated under Section 11 of the Act, 1996, is satisfied - Once the arbitral tribunal is constituted, it shall be open for the respondents to raise all the available objections in law, and it is only after (and if) the preliminary objections are considered and rejected by the tribunal that it shall proceed to adjudicate the claims of the petitioner.
Shri Justice Mohit S. Shah, former Chief Justice of the High Court of Judicature at Bombay is appointed to act as the sole arbitrator. The fees of the arbitrator including other modalities shall be fixed in consultation with the parties - petition allowed.
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2024 (9) TMI 687
Dismissal of application of the appellant seeking bail - giving illegal gratification to the BSF personnel - offence punishable under Sections109,120B read with Section 420 of the Indian Penal Code, 1860 and Sections-7,9,11,12,13(2),13(1)(d) of the Prevention of Corruption Act, 1988 - HELD THAT:- There are serious allegations against the appellant-accused, however he is in custody since 11.08.2022 (approximately two years till today) and the trial is at the stage of submission of documents of the charge-sheet under Section-207 of the Cr.P.C.
It also appears that the papers of the charge-sheet are very voluminous and some of them are in Bengali language, for which, the Special Court has directed the respondent-CBI to get them translated. The learned ASG, Mr. S.V. Raju, has assured this Court that all the documents shall be translated at the earliest, preferably within 45 days from today. However, from the voluminous record of the charge-sheet, it appears that the trial will take long time. It is also not disputed that the other co-accused, more particularly, the accused no.2 Md. Enamul Haque, has been released on bail by this Court vide Order dated 24.01.2022.
The appellant shall be released on bail subject to the fulfilment of conditions imposed - bail application allowed.
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2024 (9) TMI 686
Invocation of writ jurisdiction of this Court - seeking initiation of an appropriate writ against the respondents - legal purport of Clause (33) of the Corporate Guarantee dated 10.08.2016 - HELD THAT:- On a careful perusal of clause (1) to (32) of Corporate Guarantee, it prima facie appears that there is no question of provision for interest, while calculating the aforesaid Corporate Guarantee except to the extent of the amount provided therein.
Be that as it may, the NCLT is only seized of the matter and it is competent to decide upon the quantum of the claims that would impact the entire CIRP proceedings, including but not limited to the valuation of the Resolution Plans and the ability of the petitioner to settle the proceedings under Section 12-A of the IBC.
The present writ petition is disposed of with direction to the NCLT to decide the preliminary issue as regards applicability of Clause (33) of the Corporate Guarantee dated 10.08.2016 within four weeks of hearing fixed on 22.08.2024 for an effective CIRP proceedings at its end.
The petition is disposed off.
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2024 (9) TMI 610
Interpretation of statute - Section 29A of the Arbitration and Conciliation Act, 1996 - whether application for extension of time under Section 29A of the Arbitration and Conciliation Act, 19961 can be filed after the expiry of the period for making of the arbitral award? - HELD THAT:- As per the second proviso to Section 29A(4), the mandate of the arbitral tribunal continues where an application under sub-section (5) is pending. However, an application for extension of period of the arbitral tribunal is to be decided by the court in terms of sub-section (5), and sub-sections (6) to (8) may be invoked. The power to extend time period for making of the award vests with the court, and not with the arbitral tribunal. Therefore, the arbitral tribunal may not pronounce the award till an application under Section 29A(5) of the A & C Act is sub-judice before the court. In a given case, where an award is pronounced during the pendency of an application for extension of period of the arbitral tribunal, the court must still decide the application under sub-section (5), and may even, where an award has been pronounced, invoke, when required and justified, sub-sections (6) to (8), or the first and third proviso to Section 29A(4) of the A & C Act.
While interpreting a statute, meaningful life must be given to an enactment or rule and avoid cadaveric consequences that result in unworkable or impracticable scenarios. An interpretation which produces an unreasonable result is not to be imputed to a statute if there is some other equally possible construction which is acceptable, practical and pragmatic.
Thus, an application for extension of the time period for passing an arbitral award under Section 29A(4) read with Section 29A(5) is maintainable even after the expiry of the twelve-month or the extended six-month period, as the case may be.
The appeals are directed to be listed in the week commencing 30.09.2024 for final hearing and disposal.
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2024 (9) TMI 609
Land ownership and compensation - failure to establish that the site allotted to Defendant No.20 is not part of Sy. No. 305/2 - entitlement to receive 30 per cent of amount of compensation payable in respect of the ten sites, in spite of holding that the Appellant/Plaintiff is the lawful owner of the suit property and is entitled for full rights over the same - HELD THAT:- It is not in dispute that till date, no claim whatsoever has been projected either in the appeal before the High Court or before any other competent authority for the grant of compensation for the land having been acquired. The judgment as has been passed by the High Court affirming the ownership and title of the suit property in favour of the Appellant/Plaintiff has not been challenged by any of these private Defendants. The said judgment and the findings recorded therein have attained finality. In the absence of any claim with regard to their entitlement to compensation for the land acquired, the relief granted by the High Court in the appeal is not sustainable.
Given the lack of pleadings, evidence on record, and submissions made at the time of hearing before the High Court, the judgment passed by it granting 30 per cent of the amount payable by way of compensation in respect of the ten sites in possession of the private Defendants, deserves to be set aside. The Appellant/Plaintiff is entitled to receive the full amount payable in respect of acquisition of the suit property for the Metro Rail Project.
Appeal dismissed.
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