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Indian Laws - Case Laws
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2024 (7) TMI 1306
Maintainability of petition - availability of efficacious remedies under the SAEFAESI Act, 2002 - issuance of notices issued under Section 13(2) and 13(4) of the SARFAESI Act, 2002 - HELD THAT:- The writ petition was filed on 20th July, 2022 i.e. after issuance of the notice under Section 13(4) of the said Act. It appears from the writ petition that the respondent no. 1 filed the writ petition challenging the issuance of notices issued under Section 13(2) and 13(4) of the SARFAESI Act, 2002, including the illegal and arbitrary action on the part of the appellant bank for alleged non-compliance of the letter of arrangement dated June 28, 2021.
The Hon’ble Supreme Court in Phoenix ARC Private Limited [2022 (1) TMI 503 - SUPREME COURT], after taking note of the various decisions, held that writ petitions at the instance of borrowers against the proposed action to be taken under Section 13(4) of the SARFAESI Act, 2002 is an abuse of process of the Court in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act. It was further held that under such situation the High Court ought not to have entertained the writ petitions - The Hon’ble Supreme Court in Phoenix ARC (supra) held that the remedies available to an aggrieved person against the action taken under Section 13(4) of the SARFAESI Act by way of appeal under Section 17 of the Act is both expeditious and effective and the High Court while exercising its jurisdiction under Article 226 is dutybound to consider whether the petitioner has any alternative or effective remedy for resolution of dispute.
The Hon’ble Supreme Court in Baghora Polylab (P) Ltd. [2008 (9) TMI 864 - SUPREME COURT] held that a contract may be discharged by the parties to the original contract either by entering into a new contract or by acceptance of performance of modified obligations in lieu of the obligations stipulated in the contract.
In the case on hand it is evident from the records that the respondent no.1 having executed documents in terms of the letter of arrangement dated 11.10.2021 have entered into a new contract in substitution of the original contract i.e. the restructuring of accounts vide letter dated 28.06.2021. Therefore, the original contract vide restructuring letter dated 28.06.2021 gets discharged by the subsequent act of the parties - The issue of non service of letter of arrangement dated 28.06.2021 which weighed with the learned Single Judge pales into insignificance in view of the aforesaid observations of this Court.
This Court is of the considered view that after the respondent no. 1 accepted the letter of arrangement dated 11.11.2021, the cause of action for seeking specific performance of the letter of restructuring dated 28.06.2021 no longer survives. This Court, therefore, holds that the direction passed by the learned Single Judge upon the Bank to give effect to the letter of arrangement dated 28.06.2021 and to give the benefit of the same to the writ petitioner/respondent no. 1 herein calls for interference.
The impugned judgment and order dated November 3, 2021 stands set aside and quashed.
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2024 (7) TMI 1250
Dishonour of Cheque - issuance of summons - Cheque furnished as a security is covered under the provisions of Section 138 of N.I. Act or not? - Scope and limited jurisdiction of High Court under Section 482 of Cr.P.C.
HELD THAT:- The entire dispute is based on the books of accounts. It needs to be noted that, at the time of filing the complaint, the complainant submitted 128 documents which are in the form of invoices, ledger accounts, agreement etc. In the affidavit-in-reply, it has been specifically contended that, upon the instructions, the cheques were retained so as to enable the complainant to recover the outstanding. The complainant has placed on record five blank cheques, drawn by the accused, in favour of complainant company to substantiate the stand taken by the accused that the questioned cheques were not given as a security. The said blank cheques were given as a security against the payment and same still in the custody of the complainat and they are not presented for encashment.
This Court is of primafacie opinion that, at this stage, it is difficult to examine the disputed question of facts which are in the form of defences, cannot be examined and therefore, the issue as to whether the cheques which were sent along with the purchase order can be considered to be in discharge of an outstanding amount or not is a subject matter of trial, because on 17.04.2021, the total outstanding dues was Rs.2,08,68,924/- and therefore, prima-facie, it can be said that, there was an outstanding liability subsisting on the date of issuance of cheques - entertaining the quashing petition at this stage will result in finality without giving the parties an opportunity to adduce the evidence as merely on the basis of pleadings and the stand taken by the parties and considering the presumption in favour of the complainant and the burden of the accused to disprove the fact that on the date of issuance of cheques, there was no legal debt, legally it would be required to be determined by the trial court after evaluation of the evidence.
This Court do not find substance in the submission made by learned counsel for the applicants-accused that the ingredients of Section 138 are not made out and the complaint under Section 138 of N.I. Act is not maintainable - no case is made out to exercise extraordinary jurisdiction and inherent powers of this Court to quash the Criminal Case pending on the file of Judicial Magistrate Court at Surat.
The petition stands dismissed.
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2024 (7) TMI 1249
Dismissal of appellant’s petition preferred under Section 34 of the Arbitration and Conciliation Act, 1996 - levy of liquidated damages on account of failure to plead and demonstrate legal injury - HELD THAT:- The learned Arbitrator has rightly concluded that there was no legal justification for the levy of liquidated damages on account of failure to plead and demonstrate legal injury. Liquidated damages, in law, are no different from unliquidated damages that an aggrieved party may claim. In both instances, the aggrieved party is required to demonstrate legal injury.
Liquidated damages, as agreed to between the disputants, represents the maximum amount that can be paid to an aggrieved party. Since damages for breach of contract is paid as compensation, the law requires the defaulting party to pay, even under Section 74 of the Contract Act, reasonable compensation - no interference is called for with the judgment of the learned Single Judge.
Since there are no pleadings on record concerning the imposition of liquidated damages by NTPC, no leave can be granted at the second stage of scrutiny.
The appeal is dismissed. Costs are quantified at Rs. 20,000/-.
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2024 (7) TMI 1248
Dishonour of Cheque - challenge to summoning order and the complaint pending before the learned Trial Court - exercise of jurisdiction under Section 482 of Cr.P.C. - HELD THAT:- The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, [2023 (7) TMI 1436 - SUPREME COURT] wherein it was observed that 'Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.'
It was laid down in CBI v. Aryan Singh, [2023 (4) TMI 1330 - SUPREME COURT], that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence.
In the present case, the learned Magistrate passed an order after going through the cheque, notice, preliminary evidence in the form of an affidavit and other documents attached to the complaint. He was satisfied that there existed sufficient ground to proceed against the accused under Section 138 of N.I.Act. Hence, the accused was ordered to be summoned.
It is apparent from the order that the learned Magistrate had not passed the order simply based on evidence but he has satisfied him by going through the documents, which is sufficient compliance with the provisions of Section 202 of Cr.P.C. as laid down in In re: Expeditious Trial of Cases [2021 (4) TMI 702 - SUPREME COURT]. Hence, the submission that there was noncompliance with section 202 of Cr.P.C. is not acceptable.
The present petition fails and the same is dismissed.
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2024 (7) TMI 1247
Renewal of cash credit facility for MSME Unit - Section 13(4) of the SARFAESI Act - loan account classified as NPA - HELD THAT:- The petitioner submitted Ext.P12 representation before the respondents for immediate arrangement for regularization of credit facility. While Ext.P12 representation was pending before the respondents, the 2nd respondent issued Ext.P13 possession notice. The action of the respondents is high handed and against fundamental rights guaranteed to the petitioner under Article 14 of the Constitution India, contends the petitioner. The writ petition has been filed under Article 226 of the Constitution of India for issuance of proper directions for regularization of the loan account maintained with the 1st respondent and to stay further proceeding to Exts.P4 and P13 in the interest of justice.
When the writ petition came up for admission, this Court passed an interim order dated 09.11.2023, staying all further proceedings against the petitioner for a period of one month on condition that the petitioner remits an amount of ₹20 lakhs within a period of one month. The petitioner submits that though the petitioner could not remit the amount within the stipulated period of one month. The amount has been remitted by 01.01.2024.
The writ petition is therefore disposed of permitting the petitioner to prosecute his application before the Debts Recovery Tribunal-II, Ernakulam.
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2024 (7) TMI 1212
Dishonour of Cheque - insufficient funds - vicarious liability under Section 141 NI Act - HELD THAT:- Apart from the bald averment made in the complaint as well as during the course of submissions that the petitioner is the deemed owner of the firm, no other evidence has been produced/placed on record to show that the petitioner is the deemed/real owner or that he was in charge or responsible for the business of the firm at the time of the commission of the offence. On the other hand, the petitioner has placed on record a certificate of acknowledgement of registration from the Deputy Registrar of Firms. The said document nowhere shows the present petitioner as a partner in the said firm. Further, a perusal of the complaint would show that the cheque was issued on account of the firm and was signed by Sh. Hoshiyar Singh and not the present petitioner.
There is no evidence on record to show that the petitioner was a partner of the firm or that he was the signatory of the cheque. In the absence of any such evidence to bring the petitioner within the fold of Section 138 r/w Section 141 NI Act, forcing the petitioner to stand trial solely on the basis of a bald averment, that too unsubstantiated, would amount to an abuse of the process of law.
Considering the entire factual matrix including the fact that the petitioner has presented an unimpeachable and incontrovertible material in the form of certificate of acknowledgement issued by the Deputy Registrar of Firms, which clearly shows that he is not a partner in the accused firm as well as the fact that the respondent has failed to produce any evidence to the contrary, the present petition is allowed.
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2024 (7) TMI 1211
Territorial Jurisdiction of Chief Metropolitan Magistrate (CMM) - jurisdiction of DRT to assess whether the enforcement of security by the secured creditor - HELD THAT:- The DRT has the jurisdiction to assess whether the enforcement of security by the secured creditor is in accordance with the provisions of the Act.
This Court notes that Section 14 of the SARFAESI Act categorically states that the Chief Metropolitan Magistrate or the District Magistrate has the authority to assist the secured creditor in possession of the secured asset. However, the said section further provides that the Chief Metropolitan Magistrate or the District Magistrate, within whose jurisdiction any such secured asset or other documents related thereto, may be situated or found to take possession thereof, then said Chief Metropolitan Magistrate or the District Magistrate, as the case may be, shall upon application made in this regard by the secured creditor, take possession of such asset.
Perusal of Section 14(1) of the SARFAESI Act manifests that the learned CMM has the authority to take action and issue directions for taking over the secured assets, where such secured asset is situated within the jurisdiction of the said CMM - In the present case, the order passed by the learned CMM is clearly without jurisdiction, since as per the submission of the learned Additional Standing Counsel for the GNCTD, the area in question where the property is situated, falls for civil and criminal jurisdiction under the North District.
This Court is of the view that the petitioner ought to approach the learned DRT since there is an efficacious remedy available under Section 17 of the SARFAESI Act.
Since in the present case, it has come to the fore that the impugned order dated 09th January, 2024 passed by learned CMM, North-West, Rohini Courts is without any jurisdiction, therefore, in order to balance the equities, the order dated 09th January, 2024 is suspended for a period of one week, in order to grant opportunity to the petitioner to approach the learned DRT under Section 17 of the SARFAESI Act.
The petition is disposed off.
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2024 (7) TMI 1210
Dishonour of Cheque - vicarious liability u/s 141 of the NI Act - HELD THAT:- In the present case, the issue whether the statutory notice was issued, in view of the factual situation wherein the respondent states that the petitioner refused to accept notice while the petitioner states that no such notice was received, is a matter of trial. However, the complaint case must fail owing to a more fundamental issue. The subject cheque, copy of which has been placed on record, was signed only by petitioner’s late husband- Arvind Gupta. Although it is conceded that the cheque was issued from an account jointly in the name of the Arvind Gupta and Neeta Gupta (petitioner herein) however, it is a matter of fact that the said cheque is not signed by the petitioner.
The criminal complaint filed against the present petitioner is clearly an abuse of process of law and the same is liable to be quashed and set aside - Consequently, the present petition is allowed and the criminal complaint against the petitioner is quashed.
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2024 (7) TMI 1167
Deficiency in construction - delay in handing over the flats to the appellants - forfeiture of opportunity to file written statement - forfeiture of opportunity to file a written statement - HELD THAT:- Under Annexure P-18 order, this Court declared that the first respondent had forfeited its right to file a written statement and then permitted, rather, directed to proceed further without the written statement of the first respondent-builder. True that even then its right to participate in the proceedings was protected, presumably, taking into account the position of law in that regard.
What is the impact of forfeiture of opportunity to file written statement? - HELD THAT:- All the provisions in the Code of Civil Procedure, 1908, (CPC) are not proprio vigore applicable to proceedings before Consumer Forums created under the Consumer Protection Act, 2019, except to the extent it is provided under Section 38 (9) of the Consumer Protection Act. Be that as it may, in the absence of specific provisions dealing with the consequence of forfeiture of the right to file a written statement, it is only appropriate to refer to the provisions and positions dealing with such situations in the CPC to know the general law on this question - The rigour of the rule of pleadings is evident from Rule 7 of Order VI, CPC, which mandates that ‘no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same’.
There is no case for the first respondent that it sought permission to cross - examine Kaushik Narsinhbhai Patel who filed affidavit of evidence and produced documentary evidence. At any rate, no such case was put forth by the first respondent and no grievance of denial of such opportunity was also raised - the first respondent could be permitted only to argue the legal questions arising based on authorities and provisions of law as also regarding lapses or laches and the consequential non-admissibility or otherwise of evidence, let in by the appellants.
Whether NCDRC had given weight to any such pleadings and contentions taken by the first respondent in its written submissions and/or whether the decision of NCDRC is based on any fact, factors or data furnished by the first respondent beyond the extent permissible on account of the legal trammel of forfeiture of its opportunity to file a written statement? - HELD THAT:- Though the action on the part of the first respondent who suffered Annexure P- 18 order, in bringing on record its case and contentions to resist the case and contentions of the complainants, cannot be appreciated, the contention of the appellants based on the same became inconsequential. As stated earlier, in view of Annexure P-18 order, we are also not going to advert to any case, claims or contentions of the first respondent raised in its reply and objection filed in this proceeding, except to the legally permissible limit, in case any such material is available on record - Though the first respondent participated in the proceeding before the NCDRC, it could not bring-forth anything admissible in view of the impact of forfeiture under Annexure P-18 order.
This appeal is allowed in part by modifying the formula formulated under paragraph 8 of the impugned judgment by NCDRC in the matter of payment of compensation for delay in handing over possession of flats and it is ordered that the liability of the developer to pay interest at the rate of 6% per annum shall be from the due date for possession fixed as above viz., from September, 2014 till the date on which the respective complainant-buyers are offered possession.
Application disposed off.
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2024 (7) TMI 1166
Application filed by the Election Commission of India seeking further directions regarding data submission - ECI did not retain a copy of the data which was collated by it since it was being placed before this Court in sealed custody - HELD THAT:- The judgment of the Constitution Bench in ASSOCIATION FOR DEMOCRATIC REFORMS & ANR. VERSUS UNION OF INDIA & ORS. [2024 (2) TMI 812 - SUPREME COURT (LB)] required the State Bank of India (SBI) to furnish to the ECI all details of the Electoral Bonds purchased, and, as the case may, redeemed by political parties, including the date of purchase/redemption, name of the purchaser and the denomination of the Electoral Bond purchased. It has been submitted that SBI has not disclosed the alpha-numeric numbers of the Electoral Bonds.
The Registry is directed to issue notice to SBI, returnable on 18 March 2024. Additionally, it is also directed the presence of a Senior Officer of SBI who is responsible for the management and storage of details of Bonds purchased and redeemed on the next date of hearing.
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2024 (7) TMI 1165
Non-supply of relevant documents that have been relied by the respondent no. 1-bank, at the time of issuance of the impugned SCN - Categorization of account/name as “Fraud”, as per Reserve Bank of India (RBI) Guidelines - seeking permission to allow inspection, and furnish all supporting/relied upon documents - HELD THAT:- Failure to supply relevant documents, is a serious one, as without supplying the documents that have been relied upon in the said SCN, it would not be possible to give an effective and proper reply to the said SCN by the petitioner. Non-supply of the underlying documents, at the time of issuance of a SCN, would have the effect of directly impinging upon the right of representation of a party in terms of Principles of Natural Justice. The Principles of Natural Justice have to be strictly followed, in order to give a party an efficacious opportunity to represent its case suitably and adequately. The same cannot be reduced to an empty formality by not affording an appropriate opportunity to a party, by not giving access to the relevant documents, that form the basis of issuance of a SCN.
This Court in the case of Shantanu Prakash v. State Bank of India and Others, [2024 (5) TMI 1323 - DELHI HIGH COURT], has held that 'it is imperative that the relevant documents that form the basis of issuance of a SCN, ought to be provided to the concerned party in order to enable such a party to raise its defense effectively. Such fundamental right of a party cannot be taken away by denying a proper opportunity to submit an efficacious reply, which would not be feasible in the absence of requisite documents that form the core foundation of a SCN.'
Thus, it is imperative that the petitioner is supplied the complete underlying documents, as relied upon in the SCN dated 20th February, 2024, to allow the petitioner to make an effective reply.
The respondent-bank shall provide the Investigation Report dated 18th January, 2024, along with full Annexures, to the petitioner - respondent-bank shall also provide the Stock and Receivables Audit Report, along with full Annexures, to the petitioner - petition disposed off.
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2024 (7) TMI 1113
Rejection of bail - illegal trade of supplying counterfeit Indian currency notes in Nepal - High Court took the view that no cognizance could have been taken by the trial court against the appellant in the absence of any valid sanction of prosecution for the offence under Section 16 of the UAP Act - HELD THAT:- It is trite law that an accused is entitled to a speedy trial. This Court in a catena of judgments has held that an accused or an undertrial has a fundamental right to speedy trial which is traceable to Article 21 of the Constitution of India. If the alleged offence is a serious one, it is all the more necessary for the prosecution to ensure that the trial is concluded expeditiously. When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused-undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude.
In SHAHEEN WELFARE ASSOCIATION VERSUS UNION OF INDIA (UOI) AND ORS. [1996 (2) TMI 597 - SUPREME COURT], this Court was considering a public interest litigation wherein certain reliefs were sought for undertrial prisoners charged with offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act) languishing in jail for considerable periods of time. This Court observed that while liberty of a citizen must be zealously safeguarded by the courts but, at the same time, in the context of stringent laws like the TADA Act, the interest of the victims and the collective interest of the community should also not be lost sight of. While balancing the competing interest, this Court observed that the ultimate justification for deprivation of liberty of an undertrial can only be on account of the accused-undertrial being found guilty of the offences for which he is charged and is being tried. If such a finding is not likely to be arrived at within a reasonable time, some relief(s) becomes necessary. Therefore, a pragmatic approach is required.
This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail.
Appellant is directed to be released on bail subject to fulfilment of the conditions imposed - the impugned order is set aside - appeal disposed off.
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2024 (7) TMI 1112
Dishonour of Cheque - insufficient funds - compounding of the offence - settlement of dispute - Section 147 of the Negotiable Instruments Act - HELD THAT:- Section 147 of the Negotiable Instruments Act, 1881 makes all offences under NI Act compoundable offences. This settlement agreement can be treated to be compounding of the offence. All the same, Section 320 (5) of CrPC provides that if compounding has to be done after conviction, then it can only be done with the leave of the Court where appeal against such conviction is pending.
In cases where the accused relies upon some document for compounding the offence at the appellate stage, courts shall try to check the veracity of such document, which can be done in multiple ways. For the same, in the present matter, this Court vide order dated 18.03.2024 had asked the respondent-complainant to file an affidavit to bring on record whether or not any compromise has been reached between the parties.
In Raj Reddy Kallem v. The State of Haryana & Anr. [2024 (5) TMI 322 - SUPREME COURT], this Court followed the same principles and quashed a conviction under the NI Act, by invoking its powers under Article 142, even though the complainant therein declined to give consent for compounding, observing that the accused has sufficiently compensated the complainant.
The appellants are acquitted by setting aside the impugned order dated 01.04.2019 as well the Trial Court’s order dated 16.10.2012 - appeal allowed.
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2024 (7) TMI 1111
Quashing of criminal proceedings - Section 156(3) of Cr.P.C. - complainant failed to complete the work within the stipulated time due to which a show cause notice was issued to the complainant on 06.11.2017 seeking response for his failure to complete the work - HELD THAT:- Undeniably, the agreement contains an arbitration clause and the arbitration proceedings have already commenced between the parties. When the dispute started, the first letter alleging complainant’s failure to perform the work was issued by the appellant. In response to this communication, the complainant sent his reply (Annexure P-3) admitting that the construction activities have stopped due to his financial condition on account of imposition of GST and other hindrances - the complainant having himself admitted its inability to perform the work and requesting to settle the account as early as on 23.11.2017, it is certainly a civil dispute arising out of contract.
The impugned order(s) of the High Court is set aside and the petitions under Section 482 Cr.P.C. are allowed - Appeal allowed.
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2024 (7) TMI 1069
Lease or not - transaction where the right to collect tolls is given in lieu of the amount spent by the Concessionaire in the construction of roads, bridges etc. under the Build, Operate & Transfer (BOT) Scheme - Section 105 of the Transfer of Property Act, 1882 - Section 2(16) of the Indian Stamp Act, 1899 - validity of the amendment made in proviso (c) to Clause (C) of Article 33 of Schedule 1(A) as amended by the Indian Stamp (M.P.) Act, 2002 - Doctrine of legitimate expectation - Doctrine of promissory estoppel.
HELD THAT:- There are no hesitation in holding that the judgment of the High Court impugned in these appeals does not require any interference. There are no infirmity, much less any perversity warranting any interference by this Court. The High Court has dealt with all aspects of the matter considering not only the stipulations in the Concession Agreement but has also dealt with in detail with the respective arguments advanced by the petitioners before the High Court (the appellants herein) at the same time referring to the statutory provisions, the constitutional provisions as also the case-laws relied upon by the counsel for the parties. However, there is one aspect of the matter which requires clarification which we shall deal with at the end of this judgment.
The doctrine of legitimate expectation has been discussed and elucidated upon in several judgment by this Court. The doctrine provides a framework for judicial review of executive actions, policy changes, and legislative decisions.
In UOI. VERSUS HINDUSTAN DEVELOPMENT CORPN. [1993 (4) TMI 306 - SUPREME COURT], this Court emphasized that legitimate expectation primarily grants an applicant the right to a fair hearing before a decision that negates a promise or withdraws an undertaking from which an expectation of certain outcome or treatment arises. It does not, however, create an absolute right to the expected outcome. The protection of legitimate expectation is subject to overriding public interest, which means that even if an individual’s expectation is reasonable and based on a past practice or representation by the executive or legislature, it can be denied if justified by a significant public necessity.
Doctrine of legitimate expectation - HELD THAT:- The doctrine of legitimate expectation serves only as a procedural safeguard ensuring fairness in administrative decisions and policy changes. It grants the expectant party the right to a fair hearing and an explanation but does not guarantee the realization of the expected benefit. The government’s authority to revise policies in public interest remains paramount, with the judiciary intervening only in cases of arbitrariness, unreasonableness, or lack of public interest. This balanced approach ensures that while individuals can expect consistent treatment based on past practices or promises, the government retains the flexibility to respond to evolving needs and priorities.
Doctrine of promissory estoppel - HELD THAT:- On the doctrine of promissory estoppel, since it is an equitable doctrine, it only comes into play when equity requires a party be estopped from withdrawing its promise. It has been well settled by this Court in several judgments that the principle of promissory estoppel cannot be invoked against the exercise of legislative power.
Promissory estoppel or legitimate expectation can be dealt with on the same status of the executive decision when the prior as well as the subsequent decisions are both taken by the same or similarly placed authorities. Where the executive takes a decision based upon which a party acts and, later on, the executive withdraws that decision to the detriment of the party acting upon the earlier decision, it can be said to be estopped from withdrawing its promise or depriving the party from its legitimate expectation of what had been promised.
Whether the Concession Agreement is a lease or a bond or a license? - HELD THAT:- The definition of lease as given under the IS Act clearly covers any instrument by which tolls of any description are let and also under Section 105 of the TP Act, all the ingredients of a lease are fulfilled. In the present case, the same reasoning and findings as given by the High Court in great detail after considering the various clauses of the Concession Agreement is not repeated - the finding of the High Court upheld to be clearly justified and based upon a clear understanding of the terms of the concession agreement. There are no perversity at all in the reasoning given by the High Court to uphold the Concession Agreement to be a lease.
Once, the stamp duty is payable on the amount spent by the lessee, the demand raised on the whole amount would be unjustified, as such, to the above extent, the demand needs to be set aside with a further direction to the Revenue Officer/Collector (Stamps) of the district concerned to re-calculate the same as observed above and, accordingly, raise the demand. In case, the appellants have deposited the demand raised on the entire project cost then the amount lying in excess with the State would be refunded to them.
The appeals stand partly allowed.
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2024 (7) TMI 1068
Seeking grant of bail - unknown persons had siphoned off huge amount of money by creating fake Demat accounts of shareholders whose shares were lying dormant - active role of applicant or not - HELD THAT:- Being a stock broker and in the business of shares, merely because the applicant was in touch with accused No.1 and he forwarded certain whatsapp messages concerning details of shares that could be said to be dormant, in itself cannot be the basis of claiming that the applicant had a major role to play in duping the shareholders (victims). Although it is stated in the charge-sheet that the applicant had an active role to play in opening of fake accounts of such victim shareholders, there does not appear to be any material to support such an assertion.
It is brought to the notice of this Court that one of the employees of accused No.1 i.e. Mahadev Gavde, in his statement recorded under Section 164 of the Cr.P.C. has described in detail as to the manner in which the accused No.1 used to open such fake accounts of the victim shareholders. There is no role ascribed to the applicant in the said statement.
This Court is of the opinion that the applicant had been able to make out a case to contend that there is scant material to directly link the applicant with the incident in question, leading to registration of the FIR. There is presently no material on record to show that the applicant in any manner could be said to be a beneficiary of the alleged activities that led to registration of the FIR. The applicant has already spent more than 5 Months behind bars and in this situation, this Court is inclined to allow the present application.
The applicant shall be released on bail for offences under Sections 420, 465, 467, 468 and 471 read with 120(B) of the Indian Penal Code (IPC), on furnishing PR bond of ₹ 1,00,000/- and one or two sureties in the like amount to the satisfaction of the Trial Court and subject to fulfilment of further conditions imposed - bail application allowed.
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2024 (7) TMI 861
Exemption from payment of Market fee and Rural Development fee - whether the exemption from payment of Market fee granted under Clause (i) of 11.4.2 of 2003 Policy of the Punjab Government can be said to include exemption from Rural Development fee as well or not? - HELD THAT:- It is clear that the issue as to whether the 2003 Policy only grants exemption from the Market fees as levied under the 1961 Act and does not grant exemption from the Rural Development fees under the 1987 Act, has not been adjudicated by the High Court on merits. The said adjudication could not happen as the Counsel for the State had stated before the High Court that Market fee will also cover Rural Development fee and the High Court dismissed the petition as not pressed. This is pertinently where the trail of errors began - The High Court, only recorded the submissions of the State counsel and thereafter referring to the three notes/letters of 2001 of the Agriculture Department and dismissed the application. Neither the arguments were discussed and analysed nor the contents of three notes/letters were discussed.
Scope of exemption under the 2003 Policy - HELD THAT:- The 2003 Policy does not specifically exempt Rural Development fees and therefore, such an argument by the Respondent is highly presumptive, far-fetched and a clear attempt at over-reaching the scope of the 2003 Policy. If such an assumption is allowed, it would considerably broaden the canvas of the incentives available under the 2003 Policy, which was never intended. In fact, such a loose interpretation of the State policies would lead to an ambiguity to the State’s intent and render it opposite to the public policy - the exemption from Market fees is inclusive of Rural Development fees shall be contrary to the statutory provisions and objective behind both the Acts as well as the 2003 Policy. Thereby, the two fees cannot be equated or assumed to be same or similar for the purposes of exemption.
Effect of communication made by the State via various notes/letters - HELD THAT:- From an in-depth analysis of the statutes and policies produced, it is apparent that no unit, other than those approved as Mega Project, has been allowed exemption from the payment of Rural Development fee, unless explicitly provided by the authorities. The Respondent herein, M/s Punjab Spintex Limited, has admittedly not been approved as a Mega Project and, therefore, not eligible for such exemption from Rural Development fee.
The Market fees and Rural Development fees are distinct and, there being no exemption from Rural Development fees mentioned in the 2003 Policy, it only encompasses exemption from Market fees in its ambit. The two fees under the two different statutory frameworks cannot be equated as one by the Respondent and they cannot assume that exemption from “Market fees” would subsume in itself “Rural Development fees” also.
The impugned order set aside - appeal allowed.
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2024 (7) TMI 860
Attribution of bid to a bona fide mistake - prayer for recommencement of the e-auction process - bona fide and inadvertent human error - HELD THAT:- It is well settled that, normally, the courts would be loath to interfere in commercial matters, especially when such interference has the effect of delaying the execution of mega projects of national importance.
It is evident that while undertaking the exercise of judicial review of matters relating to tenders, the court has to strike a fair balance between the interests of the Government, which is always expected to advance the financial interests of the State, and private entities. As observed by this Court, not every small mistake must be perceived through the lens of a magnifying glass and blown up unreasonably. The present case is precisely of such a nature. A mere typographical error forms the fulcrum of the present lis and, thus, the principles of proportionality, reasonableness and equity demand that the appellant’s grievance be heard.
This Court, on the facts of the case in Patel Engineering Co. Ltd. [2001 (1) TMI 921 - SUPREME COURT], held that negligent mistakes in bid documents could not be permitted to be corrected on the basis of equity. There, the bidders had merely informed the State authorities of the alleged mistake in their bid more than two months after the same was announced in front of all the bidders who responded to the tender.
It is as clear as daylight that the forfeiture of the entirety of the appellant’s security deposit worth Rs 9,12,21,315/- as against evident human error, which has not been shown to even border on mala fides, or knowingly done, is punitive. The enforcement of an otherwise commercially unviable bid, with the forfeiture of the deposit hanging over the appellant’s head akin to a sword of Damocles, can hardly be said to be in either party’s best interests. Perhaps, the respondents could consider to provide a cross check and affirmation, from the party, to avoid human errors and mistakes.
The impugned communication issued by the first respondent - The civil appeal stands partly allowed.
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2024 (7) TMI 859
Recovery of the remaining sum payable by the appellant - manufacturer or importer or distributor - whether the National Pharmaceutical Pricing Authority (NPPA), Government of India, was justified in raising a demand against the appellant to recover the higher price charged in relation to Roscilox, a brand of a Cloxacillin-based drug formulation, than that fixed by the Government under the provisions of the Drugs (Price Control) Order, 1995?
HELD THAT:- There is some overlapping inasmuch as a ‘wholesaler’, as defined in Paragraph 2(y), would include not only a ‘dealer’, as defined in Paragraph 2(d), but also a stockist appointed by a manufacturer or an importer, who would fall within the ambit of a ‘distributor’ under Paragraph 2(e). There is, thus, no clear and absolute delineation amongst the definitions. However, the so-called distinction in the defined categories was the basis for the claim of the appellant that it could not be proceeded against under Paragraph 13 of the DPCO. It asserted that it was not a manufacturer or an importer or a distributor and, therefore, it stood beyond the grasp of Paragraph 13.
Though an attempt was made by the learned counsel for the appellant to enlarge the scope of this appeal by questioning the very validity of the demand made under the DPCO, the same is not permitted - there is no evidence of the appellant having raised such an issue properly before the Delhi High Court.
The main issue that was raised before and considered by the High Court was whether the appellant would come within the reach of Paragraph 13 of the DPCO in the light of its claim that it was not a manufacturer or importer or distributor. In this regard, we find that the replies filed by the appellant in response to the notices issued by the NPPA categorically manifested that the appellant admitted purchase of the drug from the manufacturer itself. Thus, in terms of its own admissions in its replies, the appellant had direct contact with the ostensible manufacturer - Though the definition of ‘wholesaler’ under Paragraph 2(y) of the DPCO blurs the distinction between a ‘dealer’ and a ‘distributor’, by including a dealer as well as a stockist appointed by a manufacturer, the fact remains that a ‘distributor’ under Paragraph 2(c) of the DPCO has links with the manufacturer directly while a ‘dealer’ does not, as he obtains his supply of drugs from the said ‘distributor’.
Given its own inconsistent versions and in the absence of a firm factual foundation being built up by the appellant with proper documentation as to its status, it was not open to it to baldly claim that it was not a ‘distributor’ but only a ‘dealer’ - thus, no error committed by the High Court in rejecting the claim of the appellant.
Appeal dismissed.
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2024 (7) TMI 858
Dishonour of Cheque - insufficient funds - service of legal notice - authorisation of power of attorney to file the complaint on behalf of its principal - HELD THAT:- In the instant case, legal notice was sent on 19.12.2018, therefore, for want of any specific averment and proof of service, if the presumption of service of notice in reasonable time is raised, it should be deemed to have been served at best within a period of 30 days, from the date of its post i.e. 17.1.2019. However, in the instant case, the complaint itself has been filed on 14th January, 2019. Thus, prima facie on 14.1.2019, no offence under Section 138 of N.I. Act, 1881, was attracted as after presumed service on 17.1.2019 still 15 days were required for response by applicant. The opposite party No.2 was still required to wait for another 15 days. Therefore, no offence under Section 138 of N.I. Act, 1881, was made out against the applicant on the relevant date when the complaint was filed.
Since in the instant case, the complaint has been filed by the power of attorney holder in his own name and not as the power of attorney holder of the payee of the cheque and further no offence under Section 138 of N.I. Act, 1881, is constituted in view of the failure of the applicant to make assertion with regard to service of notice and on the basis of presumption of service after expiry of 30 days of its sending through registered post, no cause of action has ever arisen to opposite party No.2 to maintain the instant complaint.
The entire proceedings of Criminal Complaint Case under Section 138 of Negotiable Instruments Act, 1881, Police Station-Bhadohi, District- Bhadohi, pending before the court of Chief Judicial Magistrate, Bhadohi at Gyanpur, are hereby quashed - the instant application under Section 482 Cr.P.C. is allowed.
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