|
Advanced Search Options
Indian Laws - Case Laws
Showing 241 to 260 of 26755 Records
-
2024 (7) TMI 812
Steps initiated by the respondent no.1-IDBI Bank, New Delhi, under the provisions of SARFAESI Act, for the loan facilities granted by respondent no.2-IDBI, Dubai to respondent no.3-company - respondent no.3-company defaulted on the debt or not - HELD THAT:- From perusal of Section 96(1)(b) of IBC, 2016, it is evident that the interim moratorium only restrains any ongoing or fresh legal action or proceeding in respect of any debt pertaining to personal guarantor, and not any security interest created by the personal guarantor - there is no moratorium imposed on the respondent-bank from dealing with its security interest. Further, there is no restriction on the personal guarantor, i.e., the petitioner herein from approaching any appropriate forum to protect or preserve its assets. The appropriate forum in the present case is the DRT.
Section 96(1) provides that when an application is filed under Section 95, interim moratorium shall commence on the date of the application in relation to all the debts. Section 96(1)(b) provides that during the interim moratorium period, any legal action or proceedings pending in respect of any debt, shall be deemed to have been stayed - in terms of the law of the land, any legal action or proceeding pending in respect of any debt of the petitioner, shall be deemed to have been stayed, upon commencement of the interim moratorium in terms of Section 96 of IBC, 2016.
In the present case, after taking possession of the property in question, sale of the said property has still not taken place and the process under the SARFAESI Act, is still not complete. Therefore, in terms of Section 238 of the IBC, 2016, which has overriding effect over any other law, any further action by the bank, under the SARFAESI Act, is prohibited. Thus, the respondent-bank cannot continue the proceedings under the SARFAESI Act, once proceedings under the IBC, 2016, have commenced - In the present case, no sale process has commenced with respect to the property that had been mortgaged by the petitioner with the respondent-bank, as a personal guarantor.
It is no longer res integra that where a remedy is available under Section 17 of the SARFAESI Act, this Court ought not to entertain writ petitions under Article 226 of the Constitution of India.
The respondent-bank cannot proceed further under the SARFAESI Act, in view of the interim moratorium, operating on account of the Insolvency Proceedings pending against the petitioner, the personal guarantor. 31.2 As and when the interim moratorium is lifted, and the respondent-bank proceeds under the SARFAESI Act, the petitioner shall be at liberty to approach the learned DRT and raise all issues, including issue regarding authority and jurisdiction of the respondent-bank to proceed under the SARFAESI Act, in view of the loan having been sanctioned and disbursed in Dubai, by the respondent no.-2 bank, which is also situated in Dubai.
Petition disposed off.
-
2024 (7) TMI 811
Review jurisdiction - consideration of review petitioners as persons aggrieved, on the basis of the pleadings in the RPs - ‘liberty’ to any party to seek a review of Pune Municipal Corporation [2014 (1) TMI 1643 - SUPREME COURT] - survival of ‘liberty’ after the decision in Manoharlal [2020 (3) TMI 1310 - SUPREME COURT] - Explanation in Rule 1 of Order XLVII, CPC.
Whether the last sentence of paragraph 217 of Shailendra [3-Judge] grants ‘liberty’ to any party to seek a review of Pune Municipal Corporation? - If the answer to the question is in the affirmative, did such ‘liberty’ survive after the decision in Manoharlal? - HELD THAT:- The first reason is that the submission of a ‘liberty’ being granted by Shailendra [3-Judge] makes it abundantly clear that but for such ‘liberty’, the review petitioners would not have even thought of applying for review since the law on the point was no longer res integra. It is, therefore, an admission on their part that the judgments and orders under review, as on the dates they were delivered/made, were neither erroneous (which is a possible ground for appeal, if an appeal were allowed by law) nor suffering from any error apparent on the face of the record (a possible ground for review). Therefore, merely based on Shailendra [3-Judge], a subsequent event, the review jurisdiction of this Court which is a limited jurisdiction could not have been invoked.
In paragraph 365 of Manoharlal [5-Judge, lapse] itself, it has been held by the Constitution Bench that Shailendra [3-Judge] did not have the occasion to consider certain aspects for which that decision cannot prevail. Learned senior counsel for the respondents, based on such statement, contended that Shailendra [3-Judge] stands overruled. This submission has been disputed by learned senior counsel for the review petitioners. According to them, Shailendra [3-Judge] has not been expressly overruled; only because of aspects referred to in paragraph 365 and the discussion preceding, it ceases to be a precedent.
Can the RPs be held to be maintainable, giving due regard to the Explanation in Rule 1 of Order XLVII, CPC vis-à-vis Manoharlal? - HELD THAT:- No review is available upon a change or reversal of a proposition of law by a superior court or by a larger Bench of this Court overruling its earlier exposition of law whereon the judgment/order under review was based. Notwithstanding the fact that Pune Municipal Corporation has since been wiped out of existence, the said decision being the law of the land when the Civil Appeals/Special Leave Petitions were finally decided, the subsequent overruling of such decision and even its recall, for that matter, would not afford a ground for review within the parameters of Order XLVII of the CPC.
Can the review petitioners, on the basis of the pleadings in the RPs, be considered persons aggrieved? - HELD THAT:- The review petitioners have raised ‘GROUNDS’ without even averring what was pleaded in their counter affidavits filed before the High Court and what were the defences raised which, because of non-consideration by this Court, could be said to amount to an error apparent on the face of the record. The RPs are silent as to on which specific ground referrable to Rule 1 of Order XLVII the review has been asked for. Even then, having considered such ‘GROUNDS’, we are of the considered opinion that the judgments/orders under review do not suffer from any error apparent on the face of the record - the question answered against the review petitioners.
Reference disposed off.
-
2024 (7) TMI 751
Professional misconduct - Can the Institute of Chartered Accountants of India (ICAI) take action against Chartered Accountant firms for professional misconduct under the existing provisions of the Chartered Accountants Act, 1949 or is the ICAI empowered to only take action against one person, who is identified by the firm? - HELD THAT:- In the present case, the firms themselves are registered with the ICAI as is clear from the submissions made in the writ petitions. Section 21A and Section 21B of the Act empowers the ICAI’s Disciplinary Committee, if it is of the opinion that the member is guilty of professional or other misconduct, to reprimand a member, remove the name of the member, or even impose fine. In fact, Rule 8 of the 2007 Rules makes it clear that the notice of complaint can be given to the firm setting out the acts of omission and commission at the address of the firm. The firm has the option of sending a declaration as to the persons responsible/ member answerable for answering the complaint.
The explanation makes it clear that the notice to the firm is the notice to all the members, who are the partners or employees of the firm on the date of registration of the complaint. The firm can disclose the name of a person who shall be responsible for answering the complaint “provided such a member was associated with the firm either as a partner or employee at the time of the alleged misconduct.” The proviso to Rule 8 (2) makes it clear that if no member owns responsibility in respect of the allegations, then the firm as a whole shall be responsible - Sections 21A and 21B of the Act read with Rule 8 of the Rules makes it clear that the ICAI is fully empowered to take action against a firm and issue notices even to a firm.
Thus, in a case where there is any complaint or allegation in respect of a single incident or an act of a member, the firm can designate that particular person, who was associated with the said act, which is alleged to be misconduct. The position would however not be the same, say, in a case where the allegations are in respect of arrangements entered into by firms with other international counterparts, spanning over decades and multiple agreements. A single individual cannot be pinned down in such situations to be responsible for answering the complaint as ‘member answerable’. The firm as a whole has to be held responsible if found culpable, in such circumstances, failing which the Act would be rendered toothless.
There is a recognized need for enhancing and strengthening the disciplinary mechanisms against firms and enhancing accountability and transparency by firms of CAs. Though the amendment Act of 2022 has not been notified yet, the current/extant Act and Rules cannot be read in a manner, which is contrary to the spirit of vested powers with the ICAI for taking action against firms or individuals, who are its members - The ICAI clearly did not proceed against the Petitioners due to the interim orders that were operating in these petitions. The final recommendations record categorically that the ICAI did not proceed against the Petitioners due to the said interim orders.
CAs owe a responsibility not just to their clients but also to ensure, in the process of rendering their services, that there is compliance of law. The said profession also owes a duty to the country as also to the economy as a whole. Thus, regulation of the profession of CAs by establishment of the Regulatory body like the ICAI is an important feature of the said profession itself - Proper mechanism for the purpose of ensuring that there is no misconduct is essential to preserve the robustness and the integrity of the profession. If firms are permitted to only pin down one single individual in respect of alleged misconduct spanning over decades, the entire purpose of the Act and the Rules would be completely defeated.
This Court is of the opinion that the writ petitions are themselves not tenable and hence the stay orders also do not deserve to be continued. The Petitioners would be liable to participate, if they so choose to do, give their reply on merits to the notice issued by the DC and insofar as the Petitioners or firms are concerned, the ICAI would be fully empowered to proceed in accordance with law.
Writ petitions are dismissed with costs of Rs. 1 lakh each to be paid to Delhi High Court Bar Clerk Association.
-
2024 (7) TMI 676
Recovery of arrears of tax on a vehicle purchase with penalty - HELD THAT:- After adjusting the said sum of Rs. 51,120/- as above from Rs. 52,991/- paid by the petitioner on 17.09.2017, the excess amount of Rs. 1,871/- has been adjusted towards tax liability for period between 01.10.2020 and 31.12.2020 - the respondent has re-calculated the above said amount of Rs. 1,11,581/-, there is no justification in imposing penalty on the petitioner for no fault of the petitioner.
The petitioner entertained a bona fide view that the petitioner was entitled to have the tax paid on life time basis and thus, had paid a sum of Rs. 52,991/- on 17.09.2017 for the period between 01.10.2017 and 14.12.2025. Therefore, imposition of penalty cannot be justified. Under these circumstances, the petitioner is directed to pay the differential tax due and payable by her together with 1% towards Government Labour Welfare Scheme through the Regional Transport Office.
Petition disposed off.
-
2024 (7) TMI 539
Applicability of provisions of Order XXI Rule 90 of the Code of Civil Procedure to the writ proceedings under Article 226 of the Constitution - jurisdiction of Additional Commissioner, Konkan Division, Maharashtra to decide the two appeals filed by the respondent nos. 1 and 6 respectively under Section 247 of the Maharashtra Land Revenue Code, 1966.
Applicability of provisions of Order XXI Rule 90 of the Code of Civil Procedure to the writ proceedings under Article 226 of the Constitution - HELD THAT:- There is a fine distinction between the auction sale conducted by the executing court under the provisions of the CPC and the auction sale conducted by the State under the provisions of different enactments like Land Revenue Code etc. The whole object behind Order XXI Rule 90 of the CPC appears to be to discourage the judgment debtors from filing frivolous application complaining about the irregularity or fraud in the conduct of the auction sale. A lot of sanctity is attached to the auction sale conducted by the executing court under the provisions of the CPC compared to the auction sale conducted by the State through its authorities - Order XXI CPC deals with the elaborate procedure pertaining to the execution of orders and decrees. Sale is one of the methods employed for execution. Rule 89 of Order XXI of the CPC is the only means by which a judgment-debtor can escape from a sale that has been validly carried out. The object of the rule is to provide a last opportunity to put an end to the dispute at the instance of the judgment- debtor before the sale is confirmed by the court and also to save his property from dispossession.
As a court of plenary jurisdiction, the writ court while exercising powers under Article 226 of the Constitution is free to adopt its own procedures and follow them. It cannot be compelled to follow the procedures prescribed in the CPC. This is so for the specific provision made in its Section 141 - The High Court while exercising jurisdiction under Article 226 of the Constitution has jurisdiction to pass appropriate orders. Such power can neither be controlled nor affected by the provisions of Order XXI Rule 90 of the CPC. It would not be correct to say that the terms of Order XXI Rule 90 should be mandatorily complied with while exercising jurisdiction under Article 226 of the Constitution. Proceedings under Article 226 of the Constitution stand on a different footing when compared to the proceedings in suits or appeals arising therefrom.
Once it is evident that the mandatory provisions as stipulated under the rules and regulations are not followed or abridged, any action pursuant to the same could be termed as gross illegality. There is a fine distinction between illegality and irregularity. Whereas the former goes to the root of the matter and renders the action null and void, of no effect whatsoever, the latter does not ipso facto invalidate the action, unless prejudice is caused to the person making a complaint, even if, for the purposes of Order XXI Rule 90 of the CPC the lapses we have taken note of could be termed as material irregularities going to the root of the matter.
Jurisdiction of Additional Commissioner, Konkan Division, Maharashtra to decide the two appeals filed by the respondent nos. 1 and 6 respectively under Section 247 of the Maharashtra Land Revenue Code, 1966 - HELD THAT:- Section 210(1) of the Revenue Code provides that an application can be made where an immovable property has been sold under the Revenue Code by i) owner of the property; and ii) holding interest therein by virtue of a title acquired before such sale. It would be relevant to state that the respondent No. 6 does not fall within the category as provided under Section 210(1) of the Revenue Code nor has the respondent No. 6 claimed to be the owner of the property or has an interest in the property by virtue of the “title acquired” - It is well settled principle in law that issuance of a writ or quashing/setting aside of an order if revives another pernicious or wrong or illegal order then in that eventuality the writ court should not interfere in the matter and should refuse to exercise its discretionary power conferred upon it under Article 226 of the Constitution of India. The writ court should not quash the order if it revives a wrong or illegal order.
Thus, no interference is warranted with the impugned judgment of the High Court. However, the facts and circumstances of this case have left with an uphill task to mould the final order necessary to be passed in order to do substantial justice with the parties to this litigation.
While affirming the impugned judgment and order passed by the High Court, the appellant is directed to deposit a sum of Rs. 4,00,00,000/- with the respondent no. 6-ARCIL within a period of six months from today, failing which we shall proceed to pass further orders - appeal allowed in part.
-
2024 (7) TMI 538
Interpretation of statute - purchase for “commercial purpose” within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 or not - purchase of a vehicle/good by a Company for the use/personal use of its directors - HELD THAT:- Ordinarily “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. The purchase of the goods should have a close and direct nexus with a profit generating activity. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. If it is found that the dominant purpose behind purchasing the goods was for the personal use and consumption of the purchaser and/or their beneficiary, or was otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “generating livelihood by means of self-employment” need not be looked into. Again, the said determination cannot be restricted in a straitjacket formula and it has to be decided on case-to-case basis.
Purchase of two cars for the use by its Whole-time Executive Directors as part of their perquisites - whether the high-priced luxurious car was purchased by the respondent no. 1 for its “commercial purpose”? - HELD THAT:- People do not purchase the high-end luxurious cars to suffer discomfort more particularly when they buy the vehicle keeping utmost faith in the supplier who would make the representations in the brochures or the advertisements projecting and promoting such cars as the finest and safest automobile in the world. The respondentcomplainant having suffered great inconvenience, discomfort and also the waste of time and energy in pursuing the litigations, the impugned order passed by the National Commission of awarding the compensation by directing the appellants to refund the purchase price i.e., Rs. 58 lakhs approx. to the respondent-complainant, and take back the car (vehicle) as such does not warrant any interference - having regard to the said offer made by the appellants, and having regard to the subsequent event of the respondent-complainant having retained and used the car in question for about seventeen years, we are of the opinion that the interest of justice and balance of equity would be met if the respondentcomplainant is permitted to retain the car in question and the appellant is directed to refund Rs. 36 lakhs instead of Rs. 58 lakhs as directed by the National Commission in the impugned order.
Whether purchase of the car by the respondent no. 1 company for the use of the respondent no.2 i.e., its director would tantamount to purchase for commercial purpose? - HELD THAT:- Incomplete disclosure or non-disclosure of the complete details with regard to the functioning of the airbags at the time of promotion of the car, has rightly been considered by the National Commission as the “unfair trade practice” on the part of the appellants, and awarded a sum of Rs. 5 lakhs towards it. The National Commission has also rightly balanced the equity by awarding Rs. 5 lakhs only towards the deficiency in service on account of the frontal airbags of the car having not deployed at the time of accident - Since the National Commission has considered in detail the evidence and the material on record adduced by the both the parties, the well-considered judgment dated 11th September 2017 passed by the National Commission does not warrant any interference.
Appeal disposed off.
-
2024 (7) TMI 537
Inherent power to recall a process - admission of an instrument in evidence and its marking as an exhibit by a court (despite the instrument being chargeable to duty but is insufficiently stamped) - section 151 of the Code of Civil Procedure - whether the Trial Court did judicially determine the question of admissibility?
HELD THAT:- The Trial Court not having ‘decided’ whether the GPA was sufficiently stamped, section 35 of the 1957 Act cannot be called in aid by the respondent. For section 35 to come into operation, the instrument must have been “admitted in evidence” upon a judicial determination. The words “judicial determination” have to be read into section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by section 35. However, in a case of “no judicial determination”, section 35 is not attracted.
In view of the reasoning of the Trial Court of admitted failure on its part to apply judicial mind coupled with the absence of the counsel for the appellant before it when the GPA was admitted in evidence and marked exhibit, a factor which weighed with the Trial Court, we have no hesitation to hold that for all purposes and intents the Trial Court passed the order dated 19th October, 2010 in exercise of its inherent power saved by section 151, CPC, to do justice as well as to prevent abuse of the process of court, to which inadvertently it became a party by not applying judicial mind as required in terms of sections 33 and 34 of the 1857 Act. We appreciate the approach of the Trial Court in its judicious exercise of inherent power.
The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the state - the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.
Finding no error in the order of the Trial Court dated 19th October, 2010, the impugned order of the High Court dated 26th September, 2011 is set aside, meaning thereby that the order of the Trial Court is restored - appeal allowed.
-
2024 (7) TMI 536
Legality of different State Governments levying and collecting Authorization Fee/Border Tax in violation of All India Tourist Vehicles (Permit) Rules, 2023 - HELD THAT:- The State enactments, rules and regulations being not under challenge, it cannot be said that the demand of Border Tax/Authorization Fee at the borders by the respective State Governments is bad under law. The petitioners, in order to succeed, have to consider challenging the State provision contained in the Act. There is another reason why we are not entertaining the matters on merit is that the petitioners ought to have first approached their jurisdictional High Courts to challenge their respective State enactments.
These petitions are disposed off without interfering with the demands being raised by the State Governments while giving liberty to the petitioners to approach the jurisdictional High Courts for their reliefs. It is made clear that we have neither entered into the merits of the matter nor examined the same.
-
2024 (7) TMI 535
Dishonour of Cheque - vicarious liability of director u/s 141 of NI Act - petitioner had resigned from the Directorship of the company or not - HELD THAT:- The law as regards the liability of a Director for an offence under Section 138 NI Act committed by a company is no longer res integra. In S.M.S Pharmaceuticals Ltd. v. Neeta Bhalla & Anr. [2005 (9) TMI 304 - SUPREME COURT], the Supreme Court while dealing with the aforesaid, discussed in detail the role of a Director in a company as well as their liability.
Section 141 being a penal provision, has to be strictly construed. Resultantly, not every Director can be brought into the fold of the said provision merely due to the aforesaid reason. It is only those Directors who were in-charge of the day-to-day affairs and responsible for the conduct of the business of the company can be held liable for the offence under Section 138 NI Act. The word ‘in-charge of a business’ has been interpreted to mean a person having overall control of the day-to-day business of the company. Thus, for a Director to be vicariously liable, the complainant has to show that the said Director was indeed associated with the day-to-day affairs and management of the business. A Director cannot be arrayed as an accused on the basis of a cursory statement or vague averment. What would be appropriate pleadings/averments would be determined on a case-to-case basis.
The petitioner has denied liability by arguing that the complaint is bereft of the necessary averments against the petitioner, to bring her into the net of Section 141 NI Act. However, upon a reading of the criminal complaint placed on record, this Court is of the considered opinion that the complaint contains the necessary averments in line with Section 141 NI Act inasmuch as it has been stated that the petitioner alongwith the other Directors was jointly and severally responsible and in-charge for the conduct of the business as well as in control of the management of the affairs of the accused company.
Petition dismissed.
-
2024 (7) TMI 459
Jurisdiction - power of the Appellate Court dealing with the appeal under Section 37(1)(c) of the Arbitration Act to pass an order of remand to Section 34 Court - HELD THAT:- In the facts of the case in hand, while deciding the petition under Section 34 of the Arbitration Act, the learned Single Judge has made a very elaborate consideration of the submissions made across the Bar, the findings recorded by the Arbitral Tribunal and the issue of illegality or perversity of the award - the finding of the Appellate Bench that the impugned judgment of the learned Single Judge does not address several issues raised by the parties cannot be sustained at all.
The remedy of an appeal will not be effective unless there is a power of remand vesting in the appellate authority. In the Arbitration Act, there is no statutory embargo on the power of the Appellate Court under Section 37(1)(c) to pass an order of remand. However, looking at the scheme of the Arbitration Act, the Appellate Court can exercise the power of remand only when exceptional circumstances make an order of remand unavoidable.
If the Courts dealing with appeals under Section 37 of the Arbitration Act start routinely passing the orders of remand, the arbitral procedure will cease to be efficient. It will cease to be costeffective. Such orders will delay the conclusion of the proceedings, thereby defeating the very object of the Arbitration Act. Therefore, an order of remand by Section 37 Court can be made only in exceptional cases where remand is unavoidable. The scope of interference in a petition under Section 34 is very narrow. The jurisdiction under Section 37 of the Arbitration Act is narrower - When members of the bar take up so many grounds in petitions under Section 34, which are not covered by Section 34, there is a tendency to urge all those grounds which are not available in law and waste the Court’s time. The time of our Courts is precious, considering the huge pendency.
The restored appeal shall be placed before the roster Bench on 29th July 2024 at 10:30 a.m. The parties to the appeal before this Court shall be under an obligation to appear before the concerned Bench on that day, and no fresh notice shall be served to the parties - Appeal partly allowed.
-
2024 (7) TMI 458
Seeking grant of anticipatory bail - condition of dropping a PIN on Google Maps - Condition of furnishing certificate of the embassy.
Condition of dropping a PIN on Google Maps - HELD THAT:- Imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21. In this case, the condition of dropping a PIN on Google Maps has been incorporated without even considering the technical effect of dropping a PIN and the relevance of the said condition as a condition of bail. This cannot be a condition of bail. The condition deserves to be deleted and ordered accordingly. In some cases, this Court may have imposed a similar condition. But in those cases, this Court was not called upon to decide the issue of the effect and legality of such a condition.
Condition of furnishing certificate of the embassy - HELD THAT:- Grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted. Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, as explained above, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with. Hence, the Court will have to delete the condition. If the Embassy/High Commission records reasons for denying the certificate and the reasons are based on the adverse conduct of the accused based on material, the Court can always consider the reasons recorded while considering an application for dispensing with the condition.
Coming to the facts of the case, bail has been granted to the appellant firstly on the ground that the appellant has been implicated based on statements recorded under Section 67 of the NDPS Act, and that such statements are entirely inadmissible in view of the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu [2020 (11) TMI 55 - SUPREME COURT]. So, bail has been granted on merits as well. Secondly, the bail has also been granted relying upon what is held in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee1.
The case shall be listed on 15 July 2024 for passing final orders after considering the compliances made by the appellant so far.
-
2024 (7) TMI 457
Period of limitation for filing a petition under Section 34 of the Arbitration Act - HELD THAT:- As per Section 12(1) of the Limitation Act, the day from which the limitation period is to be reckoned must be excluded. In this case, the period of limitation for filing a petition under Section 34 will have to be reckoned from 30th June 2022, when the appellants received the award. In view of Section 12(1) of the Limitation Act, 30th June 2022 will have to be excluded while computing the limitation period. Thus, in effect, the period of limitation, in the facts of the case, started running on 1st July 2022. The period of limitation is of three months and not ninety days. Therefore, from the starting point of 1st July 2022, the last day of the period of three months would be 30th September 2022. As noted earlier, the pooja vacation started on 1st October 2022.
In the facts of the case in hand, the three months provided by way of limitation expired a day before the commencement of the pooja vacation, which commenced on 1st October 2022. Thus, the prescribed period within the meaning of Section 4 of the Limitation Act ended on 30th September 2022. Therefore, the appellants were not entitled to take benefit of Section 4 of the Limitation Act. As per the proviso to subsection (3) of Section 34, the period of limitation could have been extended by a maximum period of 30 days. The maximum period of 30 days expired on 30th October 2022. As noted earlier, the petition was filed on 31st October 2022.
The High Court was right in holding that the petition filed by the appellants under Section 34 of the Arbitration Act was not filed within the period specified under subsection (3) of Section 34 - there are no merit in the appeal - appeal dismissed.
-
2024 (7) TMI 456
Suit for specific performance - refund of the advance sale consideration - whether the plaintiff has proved payment of Rs. 3,00,000/- initially and another sum of Rs. 15,00,000/- totalling to Rs. 18,00,000/- to the defendant no. 1? - HELD THAT:- The document would show that the witness PW-2 had signed just below that endorsement and only thereafter, the signature of the defendant no. 1 is seen subscribed. Ordinarily, in any agreement witnessing payment of money, the party signs first and the witness(s) puts his signature(s) below that endorsement. However, in the case in hand, the witness has signed just below that endorsement and only thereafter, the defendant no. 1 is seen subscribing to the endorsement. In the suit notice exhibit B-1 also, there is no mention of payment of a definite sum paid as advance sale consideration nor existence of any endorsement has been mentioned therein. The amount of Rs. 15,00,000/- so received subsequent to exhibit A-1 agreement of sale, as stated in the second notice and also in the plaint and so reflected in exhibit A-1(a) endorsement is not stated in exhibit B-1 suit notice.
The only possible reason for this could be that the advocate who prepared the notice was not apprised of this fact. If such was the case, plaintiff’s statement in Court, without any further corroboration, is not believable and the High Court has rightly found that the case of the plaintiff as to the subsequent payment of Rs. 15,00,000/- is not established by positive evidence.
There are no substance in this appeal which deserves to be and is hereby dismissed - petition dismissed.
-
2024 (7) TMI 455
Refund of security deposit money and one month advance money - no justification to retain the amount that was paid by the petitioner at the time of getting licence - HELD THAT:- The respondents is merely a State Marketing Company, engaged for selling liquor products in Tamil Nadu. For facilitating further sale of liquor, the petitioner has also licenced licencee to set up bars adjacent to the TASMAC Retail shops maintained by them - In case the petitioner fails to pay tax in time, it is for the Authorities under the respective GST enactments to recover and collect the same from the petitioner in the manner known to law under Section 63 or Section 73 or under Section 74 of the respective GST enactments. In case the petitioner has failed to file Returns or had failed to obtain registration under the provisions of respective GST enactments, the Authorities under the respective GST enactments were empowered to initiate proceedings under Section 63 of respective GST enactments.
In this case, it is noticed that the petitioner had obtained registration, which was subsequently cancelled on 09.04.2019. The petitioner has also filed that receipts on the sales during the period. The petitioner may have evaded tax. However, such evasion of tax could not be justify by retention of the security deposit and one month advance paid by the petitioner at the time of granting the licence to the petitioner - The second respondent cannot be retain the amount and exercise a lieu over it, based on the terms in the licence issued to the petitioner.
This Writ Petition is allowed by directing the second respondent to refund the amounts collected together with 9% of the interest from the date, when the petitioner’s licence expired. The amount shall be paid to the petitioner within a period of three months from the date of receipt of a copy of this order - Petition allowed.
-
2024 (7) TMI 454
Dishonour of Cheque - vicarious liability of petitioner - whether the petitioner has signed the agreement or not - Section 141 of NI Act - HELD THAT:- The provision of Section 141 of the NI Act cannot be extended in case where the offence under Section 138 of the NI Act is committed by a proprietorship concern. In such a case, only the proprietor or at best the signatory of the cheque may be made liable to face the prosecution under Section 138 of the NI Act, but not a person who is neither the proprietor of the proprietorship concern, nor is a signatory to the cheque.
Applying the above principles to the facts of the present case, it is apparent that, in the Complaint, the respondent itself has pleaded that the Accused No. 1 is the proprietorship concern of which the Accused No. 2 is the proprietor. The cheque in question is also signed by the Accused No. 2 as proprietor of the Accused No. 1. The petitioner/Accused No. 3 has been arrayed as an accused on the premise that she is the authorized signatory of the accused no. 1 and that she signed the Agreement between the Accused No. 1 and the respondent along with the accused no. 2. That itself is not sufficient to invoke the vicarious liability of offence under Section 138 of the NI Act, in terms of Section 141 of the NI Act, on the petitioner.
The complaint against the petitioner cannot be sustained. Accordingly, the same is quashed as against the petitioner - Petition disposed off.
-
2024 (7) TMI 453
Simultaneous proceedings - Validity of Notice issued by the Respondent under Section 13(2) and 13(4) of SARFAESI Act - whether the recovery proceedings initiated by Respondent No. 1 under the RDDB Act can be continued along with the proceedings under the SARFAESI Act simultaneously? - HELD THAT:- In TRANSCORE VERSUS UNION OF INDIA [2006 (11) TMI 349 - SUPREME COURT], the Supreme Court held that the provisions of RDDB Act are not inconsistent with the provisions of the SARFAESI Act and the application of both the Acts was held to be complementary to each other.
The continuation of the adjudicatory proceedings by Respondent No. 1 in the application number i.e., T.A. No. 165/2022 filed under Section 19 of the RDDB Act was maintainable. There was no bar on its continuation due to the invocation of the SARFAESI proceedings, which are in the nature of enforcement proceedings, as observed by the Supreme Court.
In view of the settled position of law, filing of the present petition is not bona fide. It is evident that the Petitioners have filed the present petition to overreach the recovery proceedings, wherein the Petitioners have been found to be liable to pay an amount of Rs. 2,74,31,840.37 as on 26th November, 2021 plus interest, so as to circumvent the provisions of statutory appeal.
Petition dismissed.
-
2024 (7) TMI 452
Abatement of reference proceedings - recovery of debt under the SARFAESI Act - HELD THAT:- A close analysis and interpretation of third proviso to subsection (1) of Section 15 of the SICA would reveal that where secured creditors take any measure to recover their secured debt under the provisions of the SARFAESI Act, as provided therein, the reference shall abate by operation of law. The abatement would follow as necessary consequence under the law where the secured creditors represent not less than three-fourth of the amount outstanding. Therefore, it is vividly clear that such a provision has been made for the benefit of a secured creditor.
The expression, “such secured creditors” clearly manifests legislative intention that the outstanding amount must be of such secured creditors who have taken any measure to recover their secured debt under subsection (4) of Section 13 of the SARFAESI Act. To put it differently, if there are number of secured creditors who have taken any measure to recover their secured debt under subsection (4) of Section 13 of the SARFAESI Act and the secured debt, which is outstanding, is not less than three-fourth of the outstanding amount which was disbursed to the borrower by those secured creditors, third proviso to sub-section (1) of Section 15 of the SICA would be attracted to result in abatement of the proceedings by operation of law.
Thus, it is already held that even before repeal of the SICA vide the SIC Repeal Act of 2003, the reference proceedings abated in view of the provisions contained in third proviso to sub-section (1) of Section 15 of the SICA, the third proviso to clause (b) of Section 4 of the SIC Repeal Act of 2003 is not attracted.
Appeal dismissed.
-
2024 (7) TMI 451
Classification of the petitioners’ account as Non Performing Asset (NPA) - Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 - HELD THAT:-Admittedly, the credit facility was last renewed on September 29, 2022 and was valid up to December 31, 2022, after which the same was not renewed. The period of 180 days expired on June 29, 2023. Thus, under Clause 4.2.4(c) of the RBI Circular dated April 1, 2023, the account was fit to be declared NPA since the regular/ad hoc credit limits were not reviewed or renewed within 180 days from the due date of ad hoc sanction.
In the present case, the credit facility was valid up to December 31, 2022. Thus, thereafter, the sanctioned limit dropped to zero. The amount outstanding from then onwards became due and payable in the absence of any renewal to the credit facility irrespective of the fact that the sanctioned limit was not crossed. The outstanding balance of the petitioners remained less than the sanctioned limit and the credits were not enough to cover the interest debited during the previous 90 days period. After the lapse of the credit facility on December 31, 2022, the outstanding balance constantly remained below the credit facility.
The notice under Section 13(2) of the SARFAESI Act dated September 11, 2023 clearly mentions the date of classification of the petitioners’ account as NPA to be June 30, 2023. Such a notice is not required to contain elaborate or detailed reasons for the classification of NPA, the same not being a judicial or quasi-judicial order - Since the NPA classification has been upheld above, the subsequent steps taken under Section 13, sub-sections (2) and (4) of the SARFAESI Act were also justified.
The challenge to the NPA classification as well as the issuance of the notice under Section 13(2) of the SARFAESI Act and further consequential measures under Section 13 (4) fails.
Petition dismissed.
-
2024 (7) TMI 450
Maintainability of appeal before DRT - non-compliance with mandatory requirement of pre-deposit or not - judgement – debtor failed to challenge the order of attachment, proclamation of sale, auction proceedings and sale of immovable properties - HELD THAT:- It is admitted that loan was taken, which was enhanced from time to time with a limit of Rs. 12 lacs as on 22.01.1992. It is also not in dispute that in lieu of loan and its enhancement facility, various documents were executed in favour of the respondent – Bank. The guarantees were also executed by the respondents – defendants. It is also not in dispute that the property was also mortgaged in favour of the Bank. Due to default in repayment of loan, the Bank proceeded to recover its amount. In the said process, an appeal was preferred before the DRT, Jabalpur, which was decided in favour of the Bank and thereafter, consequent proceedings were initiated for attachment, proclamation, sale and confirmation.
The record further reveals that neither compliance of the mandatory pre-deposit as required under Rules 60 & 61 of Schedule – II to the Income Tax Act has been made, nor any material has been brought on record to show that the mandatory requirement of pre-deposit was made good. Once the mandatory condition was not fulfilled, the DRT ought not to have entertained the appeal and passed the impugned order - In Bishan Paul [1965 (3) TMI 112 - SUPREME COURT], the Apex Court has held that the sale certificate, though issued later, mentioned the date of confirmation of sale and the title, does not remain in abeyance till the certificate is issued and title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised.
Once the effect and operation of the interim order wipes out on final order being passed thereon, all consequential proceeding goes. This vital aspect of the matter was brought to the notice of the Tribunal, but in stead of taking note of the said fact, the appeal of the petitioner was dismissed on that ground, which cannot be permissible in law.
The impugned judgment & order passed by the Debt Recovery Appellate Tribunal, Allahabad as well as the impugned order dated 29.04.2005 passed by the Presiding Officer of D.R.T., Lucknow cannot be sustained - Petition allowed.
-
2024 (7) TMI 449
Seeking to restrain the Respondent No.1-Bank from taking the physical possession of the two immovable properties - HELD THAT:- The Petitioner herein has acted in gross violation of the undertakings dated 21st September, 2022 and 02nd June, 2023 filed in the present petition. Further, as noted above, the Petitioner was served with a demand notice dated 15th June, 2021 under Section 13(2) of the SARFAESI Act. However, the Petitioner despite having failed to point out any illegality in the actions taken by the Respondent No.1-Bank under the SARFAESI Act, has succeeded in preventing the Respondent No.1-Bank from proceeding in law against taking physical possession of secured assets by making representations before DRT and this Court with respect to its intention to clear the dues. However, as is evident from the proceedings of the DRT and the orders passed in this petition, the Petitioner has failed to avail the extension of time granted by the Court as well as the Respondent No.1-Bank.
The prayer sought in this petition for seeking extension of time to make payments to Respondent No. 1, Bank stood satisfied with passing of the orders dated 13th September, 2022 and 25th May, 2023. However, the Petitioner having failed to avail the said extension of time is not entitled to the consequential relief of restraint against the Respondent No.1-Bank - Petition dismissed.
............
|
9911796707
