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Indian Laws - Case Laws
Showing 761 to 780 of 26767 Records
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2023 (9) TMI 1433
Constitutional validity of Section 420 I.P.C.ultra vires on the vice of Article 14 & 21 of the Constitution of India - HELD THAT:- The impugned F.I.R. dated 15.04.2023 lodged at the instance of the Respondent No. 3 and the consequent registration of ECIR against the present petitioners is the subject matter of Criminal Misc. Writ Petition No. 10893 of 2023. The said writ petition has already been entertained and an interim protection has been granted to the petitioners therein. Though, a recall of the order dated 04.07.2023 passed by the Apex Court, which order forms one of the basis of our order, is stated to be pending, or for that matter a SLP is also stated to have been filed against our interim order dated 13.07.2023 passed in Criminal Misc. Writ Petition No. 10893 of 2023, there is no order staying the effect and operation of either of the orders. In such view of the matter, there are no justifiable ground to take a different view as taken while passing the order dated 13.07.2023.
List this case after six weeks along with connected matters.
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2023 (9) TMI 1432
Maintainability of revision - Entitlement to ownership and possession of the entire second Schedule property or only a one- sixth share therein - gift-deed dated 24.04.1982, was fraudulently obtained from Fathima Beevi and never acted upon or not - sale-deed dated 14.11.1990, executed by Fathima Beevi in favour of Plaintiff is valid or not - property described in the second Schedule belonged to Fathima Beevi on the basis of a Hiba executed by her father or not.
Whether a revision Under Section 115 of the Code of Civil Procedure is maintainable against an order of the subordinate Court rejecting on merits an application for review of an appealable decree passed in a civil suit?
HELD THAT:- Where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated, reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law. But where the review petition is dismissed, there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition.
Apart from above, there is another reason also for a revisional court not to entertain a revision against an order rejecting on merits an application for review of an appealable decree, which is, if the revisional court sets aside or modifies or alters a trial court's decree, the decree of the trial court would merge in the one passed by the revisional court. In consequence, the right of the party aggrieved by the trial court's decree to file an appeal would get affected.
In the instant case, the trial court, which had jurisdiction to allow or dismiss the review application, dismissed the review application on merits. If it had granted the review, the aggrieved party would have had a right to file an appeal Under Order XLIII Rule 1(w) read with Order XLVII Rule 7 of the Code of Civil Procedure. And if it had allowed the review and simultaneously altered/modified/reversed the decree, the aggrieved party would have had a right to file an appeal against the said decree. But, if the revisional court does the same, as has been done by the High Court while passing the impugned order, an anomalous situation would arise - if the revisional court's order is allowed to stand, owing to modification of the decree by the revisional court, to which in normal course an appeal would lie, the right of an appeal to the aggrieved party would get seriously prejudiced.
Where an appealable decree has been passed in a suit, no revision should be entertained Under Section 115 of the Code of Civil Procedure against an order rejecting on merits a review of that decree. The proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time spent in diligently pursuing the review application can be condoned by the Court to which an appeal is filed.
The revision of the Respondent against rejection of her application for review of an appealable decree ought not to have been entertained by the High Court. The impugned judgment and order of the High Court is set aside - The appeal is, therefore, allowed.
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2023 (9) TMI 1421
Rejection of application for transfer of the proceeding to the Ahmedabad Bench of the same Tribunal - HELD THAT:- The matter has reached final stage of hearing in the Tribunal at Hyderabad. That appears to be the main reason for which the Principal Bench of the Tribunal has rejected the petitioner’s transfer application. We do not find any flaw in such reasoning. In such circumstances, we decline to invoke our jurisdiction under Article 136 of the Constitution of India in the present matter.
The special leave petition is, accordingly, dismissed.
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2023 (9) TMI 1412
Doctrine of forum non-convenience - Territorial Jurisdiction - discretionary power under Article 226 of the Constitution of India to entertain or refuse to entertain writ petition in cases where the petitioner has alternative and more appropriate and convenient High Court to approach - HELD THAT:- There is no doubt that a fraction of the cause of action does arise within the territorial jurisdiction of this court as the petitioner's society is registered at Delhi and Head Offices of some of the respondents are also situated within the territorial jurisdiction of this court. However, taking into consideration the fact that the area of operation of the petitioner-Society concerning the dispute in hand, is within the territorial jurisdiction of the Patna High Court; the loan facility was also availed within the territorial jurisdiction of the Patna High Court; the security to the loan i.e., the mortgage loan of the petitioner falls under the jurisdiction of the Patna High Court; the destruction of the school building as a result of natural calamity which led the petitioner claiming his right to restructure the debt took place within the jurisdiction of the Patna High Court, therefore, this court is not inclined to entertain the instant petition.
The law with regard to the discretionary power of the High Court to not entertain matter on the ground of doctrine of forum non-convenience is settled by the Hon'ble Supreme Court in the case of KUSUM INGOTS & ALLOYS LTD. VERSUS UNION OF INDIA [2004 (4) TMI 342 - SUPREME COURT]. It was held that the court is not obliged to entertain cases where even a small part of the cause of action arises within its territorial jurisdiction, as the same cannot be construed to be determinative factor which may compel the court to decide the case. The doctrine of forum convenience in appropriate cases, entitles the court to exercise its discretionary jurisdiction and refuse to entertain such cases.
The Division Bench of this court in the case of Sachin Hindurao Waze vs UOI and Ors. has relied upon the above-mentioned judgements and has laid down two elements which have to be considered by any court while accepting jurisdiction to decide a writ petition under Article 226 of the Constitution of India. Firstly, if any part of the cause of action arises within its territorial jurisdiction; and secondly if the said court is the forum convenience.
On the perusal of the above discussion, it is settled that the court has discretionary power under Article 226 of the Constitution of India to entertain or refuse to entertain writ petition in cases where the petitioner has alternative and more appropriate and convenient High Court to approach. It is also settled that if only a part of cause of action arises in the territorial jurisdiction of the court, then the court is not obliged to entertain the matter if the court is of opinion that it is not the forum conveniens.
To determine material, essential or integral part of the cause of action, it is the substance of the matter that becomes relevant. In the instant case, all important events, have taken place outside territorial jurisdiction of this court. The petitioner is not incapacitated to approach the jurisdictional High Court - When admittedly a major part of cause of action arises within the territorial jurisdiction of a different High Court and only a minuscule cause of action arises within the jurisdiction of this court, the doctrine of forum non-conveniens will have full application. The said doctrine also assumes significance when the petitioner has an adequate alternative forum.
This court is not inclined to entertain the instant petition. The same is accordingly dismissed.
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2023 (9) TMI 1407
Non allocation of the Plough symbol to the writ petitioner for its candidates to contest the then-upcoming General Elections of the Ladakh Autonomous Hill Development Council, Kargil - HELD THAT:- Elections to any office/body are required to be free, fair and transparent. Elections lie at the core of democracy. The authority entrusted by law to hold/conduct such elections is to be completely independent of any extraneous influence/consideration. It is surprising that the Union Territory of Ladakh not only denied R1 the Plough symbol, but even upon timely intervention by the learned Single Judge, has left no stone unturned not only to resist but also frustrate a cause simply by efflux of time.
The request for allotment of the Plough symbol by R1 was bonafide, legitimate and just, for the plain reason that in the erstwhile State of Jammu and Kashmir (which included the present Union Territory of Ladakh), it was a recognized State Party having been allotted the Plough symbol. Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the ECI had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it, in the factual background. What is also clear is that the Appellants are attempting to approbate and reprobate, which this Court will not countenance.
In the present case, there is no conflict with any other stakeholder for the reason that the Plough symbol is neither a symbol exclusively allotted to any National or State Party nor one of the symbols shown in the list of free symbols. Thus, there was and is no impediment in such symbol being granted to R1. This is also fortified in the factual setting of the Plough symbol being the reserved symbol for R1 in the erstwhile State of Jammu and Kashmir and even for the Union Territory of Jammu and Kashmir, as it now exists, where the same symbol stands allotted to it.
The entire election process, initiated pursuant to Notification dated 02.08.2023 issued by the Administration of Union Territory of Ladakh, Election Department, UT Secretariat, Ladakh, under S.O.53 published vide No.Secy/Election/2023/290-301 dated 05.08.2023 stands set aside. A fresh Notification shall be issued within seven days from today for elections to constitute the 5 th Ladakh Autonomous Hill Development Council, Kargil. R1 is declared entitled to the exclusive allotment of the Plough symbol for candidates proposed to be put up by it.
This appeal stands dismissed with costs of Rs.1,00,000/- to be deposited in the Supreme Court Advocates on Record Welfare Fund.
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2023 (9) TMI 1406
Maintainability of present appeal filed by Resolution Professional - HELD THAT:- The Resolution Professional should not have filed the present appeals. The Resolution Professional should have maintained a neutral stand. It is for the aggrieved parties, including the Committee of Creditors of Regen Powertech Private Limited (RPPL) and Regen Infrastructure and Services Private Limited (RISPL), to take appropriate proceedings or file an appeal before this Court.
The present appeals preferred by the Resolution Professional are dismissed as not entertained.
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2023 (9) TMI 1364
Tenure of Judicial members of CESTAT - age of retirement would be 62 years or not - HELD THAT:- It would be wholly unjust to allow the tenures of the four judicial members to lapse between 18 April, 2023 and 9 May, 2023. Though some of them have applied for selection in pursuance of the limited vacancy circular, this cannot deprive them of the right to assert that they are entitled to continue until the age of 62 years particularly in view of the order of this Court dated 21 August, 2018.
It is directed that the four Judicial Members, whose names are set out in the tabulated statement in the order dated 3 March, 2023, shall continue to remain in service pending final disposal of the Writ Petition.
The Writ Petition shall be listed for hearing and final disposal on 11 July, 2023.
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2023 (9) TMI 1363
Dishonour of Cheque - legally enforceable debt or not - Cheque given as security - incomplete signature on the cheque - HELD THAT:- The case of the petitioner is supported that the cheque issued was undated and given as a security. The Signature on the cheque is also incomplete - As such on the date of presentation of the cheque, the company which allegedly issued the cheque was no more existence.
It is thus clear that the mandatory provision of section 138 N.I. Act is not present in the present case. The presumption as to the debt and/or liability has also been rebutted by proving that the cheque with incomplete signature was subsequently dated and submitted 8 months after the company which allegedly issued it had closed down, with no outstanding dues.
Revision allowed.
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2023 (9) TMI 1362
Dishonour of Cheque - insufficiency of funds - Legally enforceable debt or not - HELD THAT:- The petitioner has not disputed the documents executed. In such circumstances, the Magistrate's Court convicted the petitioner under Section 255(2) of the Code of Criminal Procedure for the offence under Section 138 of the Negotiable Instruments Act and sentenced the petitioner to undergo simple imprisonment for three months and to pay a fine of Rs. 15 lakhs. It was also ordered that in case of default, the petitioner shall undergo a further period of simple imprisonment for one month.
The strenuous argument made on behalf of the revision petitioner is that an agreement, the consideration or object of which is forbidden by law and if permitted, it would defeat the provisions of any law, cannot be a debt as contemplated under the Explanation to Section 138 of the Negotiable Instruments Act. The debt is based on Ext.P8 Letter of Acknowledgment executed between the parties and since the sale agreement and Ext.P8 Letter of Acknowledgment are executed to undervalue a property, any debt arising therefrom cannot be subject matter of proceedings under Section 138 of the Negotiable Instruments Act.
After failing to honour the cheque issued in consideration of the purchase of property, now the petitioner cannot be heard to contend that the debt is not a legally enforceable debt and a proceeding under Section 138 is not maintainable.
Transaction is admitted. Issuance of cheque is not disputed. The 1st respondent has not violated any procedure prescribed in Sections 138 and 139 of the Negotiable Instruments Act. In the facts of the case, the 1st respondent cannot be heard to contend that the debt is not enforceable through Section 138 proceedings - petition dismissed.
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2023 (9) TMI 1361
Dishonour of Cheque - absence of a notice of demand being served on the company - compliance with the proviso to Section 138 of NI Act or not - company could now be arraigned as an accused or not - HELD THAT:- In the present case:- a) The company has not been made an accused nor was any notice served upon the company. b) The petitioner has been made an accused as the Director of the company, who signed and issued the cheque for and on behalf of the company.
In the absence of the company being arraigned as an accused, a complaint against the petitioner is not maintainable.
Revision allowed.
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2023 (9) TMI 1360
Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or not - HELD THAT:- As per Section 18 of the Limitation Act the acknowledgement should be in written within the limitation period but in this case there is no written acknowledgement by the petitioner. Though in the complaint there is an averment that the petitioner repaid a sum of Rs.1,20,000/- on 01.12.2016 no records produced to show that the petitioner had given written acknowledgment. Mere averments in the complaint are not sufficient to hold that there is an acknowledgment. Therefore the averments made in the complaint show that the cheque was issued for time barred debt.
In this context the learned counsel appearing for the petitioner relied on various judgments - In M/S. JAGE RAM KARAN SINGH & ANR. VERSUS STATE & ANR. [2019 (8) TMI 310 - DELHI HIGH COURT] where it was held that The Appellate Court has rightly held that the alleged responsibility of the respondent No.2, if any, had already become time-barred as on the date of the issuance of cheque and, therefore, the same cannot be said to be in discharge of a legally enforceable debt or liability.
Thus, it is clear that if cheque was issued for time barred debt then the proceedings under Section 138 of the Negotiable Instruments Act would not attract. In this case also cheque was issued for time barred debt, thereby the case laws submitted by the learned counsel for the petitioner are squarely applicable to the present facts of the case.
Petition allowed.
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2023 (9) TMI 1359
Dishonour of Cheque - vicarious liability of the director - liability on non-executive directors - Section 141 of the Negotiable Instruments Act - HELD THAT:- Where a non-executive director is sought to be made as an accused in the criminal complaint, there must be necessary averments to show as to how and in what manner they were in charge and responsible for the affairs of the company and for the conduct of the business. A mere bald statement to the effect that they are in charge and responsible for the day-to-day affairs of the company is not sufficient.
This Court is convinced that the complaint does not satisfy the requirements u/s.141 of the Negotiable Instruments Act and the petitioners, being non-executive directors, cannot be roped in as accused persons without there being a specific plea as to how and in what manner they were in charge and responsible for the conduct of the business of the company. Hence, the continuation of the proceedings as against the petitioners will only result in abuse of process of Court, which requires the interference of this Court in exercise of its jurisdiction u/s.482 Cr.P.C.
These Criminal Original Petitions are allowed.
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2023 (9) TMI 1332
Direction to respondents to pay his due gratuity along with interest - Offence involving moral turpitude - It is the contention of the petitioner that the Deputy Chief Labour Commissioner failed to appreciate the scope of Section 4(6) of the Payment of Gratuity Act, 1972 and that payment of gratuity is not a gesture of charity, rather is a recognized statutory right to be provided in favour of the employee - HELD THAT:- Section 4(6) of the Payment of Gratuity Act, 1972 specifically states ‘termination’ as a pre-requisite condition for forfeiture of gratuity in all cases, including the present allegation of “offence involving moral turpitude”.
The Supreme Court in Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon, [2016 (12) TMI 1905 - SUPREME COURT] stated that termination of service was an essential pre-requisite for denial of gratuity.
The co-ordinate bench of this High Court in Steel Authority of India Ltd. & Anr. Vs. Taraknath Sengupta & Ors.,[2009 (4) TMI 1057 - CALCUTTA HIGH COURT], affirmed the right of an employee to receive payment of gratuity and postulated the need for ‘termination’ as a requisite for invoking Section 4(6) of the Payment of Gratuity Act, 1972.
Payment of gratuity is not charity, rather is a statutory right recognized by the Payment of Gratuity Act, 1972 - Section 4(6) of the Payment of Gratuity Act, 1972 stipulates specific conditions where the employer may forfeit gratuity. Through the aforementioned judgements, specifically, Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon, alleged misconduct of the employee as per the report of the domestic inquiry is not enough to constitute an “offence involving moral turpitude”, rather termination of services on account of the alleged misconduct, which constitutes an offence involving moral turpitude is essential for forfeiture of payment of gratuity.
Petition allowed.
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2023 (9) TMI 1275
Execution of the Will in favour of the Plaintiffs - Will being a forged document or not? - whether there are sufficient grounds that warrant interference with the concurrent findings of the fact, upholding validity of a Will? - Second marriage and bigamy - HELD THAT:- A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that the Will was duly executed by the testator in the presence of witnesses out of his free Will in a sound disposing state of mind and the same stands proven through the testimony of one of the attesting witnesses, namely, Suraj Bahadur Limboo who was examined as PW2 by the Civil Court. This witness categorically states that the testator executed the Will in question and, both he and the testator signed the Will in the presence of each other.
There is no evidence on record to conclude that the deceased was not in a fit or stable mental condition at the time of execution of a Will, or that a Will was executed under suspicious circumstances, or the presence of any element of undue influence - both the courts below have rightly noted that the relevant provisions were complied with, and given the well reasoned order upholding the validity of the Will, the same does not warrant interference of this court.
Second marriage and bigamy - HELD THAT:- Such submissions are not entertained as the same is not a relevant factor in deciding the main lis, which is confined to the validity of the Will.
Since the validity of the Will stands proven according to settled principles of law, consequential benefits be disbursed accordingly - appeal dismissed.
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2023 (9) TMI 1248
Dishonour of Cheque - insufficient funds - acquittal of the accused - rebuttal of the presumption - HELD THAT:- In the present case, the Learned Trial Court failed to appreciate that the accused persons failed to adduce any evidence to discharge the onus placed upon them by the presumption in law available under section 139 of the Negotiable Instruments Act. Besides making a general denial of the fact that the cheque had been issued in discharge of legal debt and/or liability, the defence failed to adduce any evidence to rebut the presumption nor did it make out a case citing the reason for which the cheque can be held to have not been issued in discharge of legal debt and/or liability. In such circumstances, the Learned Trial Court, by considering the legal presumption available under Section 139 of the Negotiable Instruments Act to have been rebutted merely on denial made by the accused/respondents, has clearly failed to appreciate the scope and purport of section 139 of the Negotiable Instruments Act. The impugned order of acquittal is thus erroneous in law as also in facts and is thus liable to be set aside.
Considering the fact that the presumption under Section 139 N.I. Act goes in favour of the complainant unless and until rebutted by the accused in accordance with law, the principal of Natural Justice requires that the complaint case be remanded back to the trial court for retrial with the direction that the Learned Magistrate shall issue notice upon both sides and allow the parties to adduce fresh evidence in respect of the presumption under Section 139 N.I. Act by calling for the relevant documents and proving the same in accordance with law and provide sufficient opportunity to the accused/opposite parties to rebut the said presumption and proceed accordingly in accordance with law.
Thus the findings of the Learned Magistrate is clearly against the provisions of Section 139 of the N.I. Act and thus not in accordance with law - Appeal allowed.
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2023 (9) TMI 1247
Dishonour of Cheque - acquittal of accused - applicability of Section 141 of the Negotiable Instruments Act on proprietorship concern - HELD THAT:- The learned Magistrate upon close examination of the evidence which has come on record, more particularly status of the drawer as reflected from the disputed cheque produced on record vide Exhs. 79 and 82, noticed that the cheque was drawn by Status Seramik India Private Limited. Though, the designation of the authorized signatory or the person who has drawn this cheque on behalf of company is not reflected in the disputed cheque, however, the fact remains that cheque has been drawn on behalf of the company. Having noticed the aforesaid fact, no error can be found with the approach of the learned Magistrate in applying provision of Section 141 of the Negotiable Instruments Act.
The issue of maintaining the prosecution under the Negotiable Instruments Act without arraigning a company as a party accused has been decided by the Hon’ble Supreme Court in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] has held that we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
This Court is of the view that no arguable case is made out for reconsideration by admitting the appeal. Hence, present application seeking leave to appeal is hereby refused. Thus, present application stands rejected.
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2023 (9) TMI 1246
Dishonour of Cheque - interference with the order of acquittal of the accused - vicarious liability of the Directors of a company - personal liability of the drawer of cheques - failure to prove charge under Section 138 of the N.I Act - HELD THAT:- There is absolutely no evidence from which criminal law under Section 138 of the N.I Act could be attributed to respondent No. 3. Therefore, recording of the order of acquittal in favour of respondent No. 3 by the learned Magistrate cannot be called into question.
The learned Advocate for the respondents has laid enough stress on the approach of the appellant court while deciding an appeal against the order of acquittal passed in favour of respondents. Series of decisions quoted above are cited by the learned Counsel for the accused. The law on this point is no longer res integra and settled by the Hon’ble Supreme Court in a Three Judges Bench decision in RAJESH PRASAD VERSUS THE STATE OF BIHAR AND ORS. [2022 (1) TMI 1396 - SUPREME COURT] - an order of acquittal can be interfered with on the ground of (a) perversity (b) non-consideration of incontrovertible evidence (c) disbelieving the testimony of witnesses on an unrealistic conjecture (d) non-consideration of direct and cogent accounts of eye-witnesses (e) non-consideration of the testimony of natural witnesses on the ground of interestedness (f) imposition of unrealistic standard of “implicit proof” rather than that of the proof beyond reasonable doubt (g) rejection of circumstantial evidence on exaggerated and capricious theory (h) rejection of circumstantial evidence based on an exaggerated and capricious theory which are beyond the plea of the accused (i) order of acquittal resulting in gross miscarriage of justice (j) perfunctory consideration of evidence (k) acquittal caused on the ground of delay etc.
Learned Magistrate held that the complainant gave loan to the company to M/s Amba Complex Private Limited and not the Directors of the company in their personal capacity. Therefore, the company was the principal accused under Section 138 read with Section 141 of the N.I Act - As drawer of the cheque respondent No. 1 is liable to be under Section 138 of the N.I Act.
If the Managing Director or Joint Director of the company takes personal responsibility to discharge the debt or liability which the company owed and issued cheque in his/their capacity, the said person is solely liable as drawer of the cheque - this Court finds that the learned Magistrate recorded an order of acquittal on misreading of evidence and the evidence on record is sufficient to hold the respondent No. 2 liable for committing offence under Section 138 of the N.I Act.
The respondent No. 1 is held guilty for committing offence under Section 138 of the N.I Act. The order of acquittal passed in favour of respondent No. 3 is not interfered with and the order acquitting the respondent No. 3 passed by the learned Magistrate is affirmed - order of acquittal is set aside - respondent No. 2 is convicted accordingly and sentenced to undergo simple imprisonment for a period of six months - appeal allowed.
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2023 (9) TMI 1186
Validity of Arbitral Award - High Court had set aside the arbitration award - inordinate delay that had occurred by not taking proper and timely action in removal of various impediments and obstacles that stood in the way of completing the project within the stipulated period of 18 months - computation and award of 10% of the contract value towards loss of overheads and another 10% towards loss of profits/profitability - HELD THAT:- Ordinarily, when the completion of a contract is delayed and the contractor claims that s/he has suffered a loss arising from depletion of her/his income from the job and hence turnover of her/his business, and also for the overheads in the form of workforce expenses which could have been deployed in other contracts, the claims to bear any persuasion before the arbitrator or a court of law, the builder/contractor has to prove that there was other work available that he would have secured if not for the delay, by producing invitations to tender which was declined due to insufficient capacity to undertake other work.
Hudson’s formula might result in double recovery as the profit being added to the profit is already subsumed within the ‘contract sum’. To avert this double-recovery, it has been suggested that the formula should be modified to ‘contract sum less overhead and profit’ Ibid. Any increase in the value of the final account for extra works such as variations contain their own element of overheads and profits. Therefore, Hudson’s formula like other formulae, which are only rough approximations of the cost impact of unabsorbed overhead, should be applied with great care and caution to ensure fair and just computation.
Arbitral tribunal in the present case has given complete go by to these principles well in place, overlooked care and caution required and taken a one-sided view grossly and abnormally inflated the damages.
The arbitral tribunal has accepted that principle of mitigation is applicable but observes that the only way BEEL could have abased the loss, was to work on Sundays or holidays. This reasoning is again ex facie fallacious and wrong. The principle of mitigation with regard to overhead expenses does not mandate working on Sundays or holidays.
The scope and ambit of the court’s power to review the awards under Section 34 of the A&C Act has been contentious viz., on the interpretation to the expression ‘in conflict with the public policy of India’. There have been legislative interventions as well as judicial pronouncements. In the context of the present case, we are required to interpret the provisions as they existed on the date on which the objections to the award were filed i.e., on 21.06.1999. Accordingly, the amendment introduced to Section 34 of the A&C Act vide Act No. 3 of 2016 with retrospective effect from 23.10.2015 and the judgments of this Court examining the amended Section 34 of the A&C Act need not be examined.
Post award interference and the extent of the second look by the courts under Section 34 of the A&C Act has been a subject matter of perennial parley. The foundation of arbitration is party autonomy. Parties have the freedom to enter into an agreement to settle their disputes/claims by an arbitral tribunal, whose decision is binding on the parties - While arbitration is a private form of dispute resolution, the conduct of arbitral proceedings must meet the juristic requirements of due process and procedural fairness and reasonableness, to achieve a ‘judicially’ sound and objective outcome. If these requirements, which are equally fundamental to all forms of adjudication including arbitration, are not sufficiently accommodated in the arbitral proceedings and the outcome is marred, then the award should invite intervention by the court.
The calculation of amounts awarded, which, in fact, amount to double or part-double payments, besides being contradictory etc. - the award has been rightly held to be unsustainable and set aside by the division bench of the High Court exercising power and jurisdiction under Section 37 read with Section 34 of the A & C Act.
Appeal dismissed.
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2023 (9) TMI 1084
Smuggling - Heroin - High Court opined that merely because Balwinder Singh3 had escaped from the car just before the point where the naka had been laid and could not be apprehended, would not be a ground to acquit him or exonerate him of the charge of conscious possession of heroin - Proof beyond reasonable doubt vis-a-vis preponderance of probability - Plea of failure to establish foundational facts - Plea of accused being in the custody of the NCB much before the naka was laid - Plea of unreliability of the testimony of the independent witness - Significance of decision in TOFAN SINGH VERSUS STATE OF TAMIL NADU [2020 (11) TMI 55 - SUPREME COURT] - HELD THAT:- The decision that declares that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.
Effect of Tofan Singh's verdict on Balwinder Singh's case - HELD THAT:- Now that it has been declared in Tofan Singh’s case36 (supra) that the judgements in the case of KANHAIYALAL VERSUS UNION OF INDIA [2008 (1) TMI 828 - SUPREME COURT] and RAJ KUMAR KARWAL VERSUS UNION OF INDIA [1990 (3) TMI 73 - SUPREME COURT] did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh3, collapses like a House of cards. It is not in dispute that Balwinder Singh3 was not apprehended by the NCB officials from the spot where the naka was laid and that Satnam Singh5 alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh5 was arrested, his statement13 was recorded under Section 67 of the NDPS Act wherein he ascribed a specific role to the co-accused - Balwinder Singh3 and the Sarpanch.
Once the confessional statement13 of the co-accused, Satnam Singh5 recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh3 and the subsequently recorded statement22 of Balwinder Singh3 himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh, there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh3 under the NDPS Act. On ignoring the said confessional statements13&22 recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained.
Balwinder Singh3 deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act.
How is Satnam Singh's case placed on a different footing - HELD THAT:- Unlike the case of Balwinder Singh, the conviction of Satnam Singh does not hinge solely on his confessional statement13 made to the NCB officials. His case is on a different footing because it also rests on other relevant factors including the testimonies of three prime prosecution witnesses namely, Sonu [PW-1], P.K. Sharma [PW-3] and O.P. Sharma [PW-5] - It is proposed to discuss that their testimonies when examined carefully, show that they had remained consistent and unfailing. There appear no material contradictions or deviations in their depositions for this Court to extend any benefit to the appellant – Satnam Singh5.
Proof beyond reasonable doubt vis-a-vis preponderance of probability - legal position - HELD THAT:- The initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution.
Plea of failure to establish foundational facts - HELD THAT:- The argument advanced on behalf of the appellant – Satnam Singh that both the courts below have erred in discarding the defence taken by him to the effect that it was Sonu who was the real culprit and was apprehended by the NCB officers with the contraband, but he was let off on bribing the NCB officers, does not meet the test of preponderance of probability and has rightly been disbelieved by both the courts in the absence of any corroboration through cogent evidence.
Plea of accused being in the custody of the NCB much before the naka was laid - HELD THAT:- The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature of any authority even to prove that the mobile phone number asserted by the appellant – Satnam Singh5 as belonging to him, stood in his name - there are no reason to take a different view.
Plea of unreliability of the testimony of the independent witness, Sonu - HELD THAT:- In the case at hand, the naka was laid by the officials of the NCB in an open area near the roundabout of Sectors 24/25, Chandigarh. Such was the location that there was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00 a.m. on 12th December, 2005. In this background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were flagged down by the NCB officers and joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu8 by claiming that he was the real culprit, is clearly a trumped up story that cannot be sustained. The other independent witness, Mukesh Kumar, had turned hostile and the prosecution did not examine him. As a consequence, the two defence witnesses, Parkash Ram and Ravi Kant Pawar produced by the appellant – Satnam Singh5 to demonstrate that Mukesh Kumar was a stock witness, would hardly be of any assistance.
The appellant – Satnam Singh has failed to make out a case for acquittal. Therefore, the order of conviction and the sentence imposed on Satnam Singh is maintained - Application disposed off.
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2023 (9) TMI 1083
Dishonour of Cheque - issuance of summons - vicarious liability of director of company - petitioner was a director or was handling the day to day affairs of the accused company at the relevant time when the cheques were issued? - HELD THAT:- Merely mentioning the designation of the accused person in the company or reproducing the phraseology of the section 141 NIA is not sufficient to attract the guilt under section 141 NIA. The law is no longer res integra that specific allegations/averments have to be made as to how and in what manner the accused alleged to have committed an offence under section 138 NIA, was responsible for, or had a role in the conduct of the business of the company, at the relevant time, when the offence is said to have been committed. Simply because the accused person was a Director or was holding some other office in the company, the vicarious liability cannot be extend to such persons.
In SMS PHARMACEUTICALS LTD. VERSUS NEETA BHALLA [2005 (9) TMI 304 - SUPREME COURT], a Three Judge Bench of the Hon’ble Apex Court held that to attract vicarious liability under section 141 NIA it is sine qua non that the person accused was in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed.
In SUNITA PALITA & OTHERS VERSUS M/S PANCHAMI STONE QUARRY [2022 (8) TMI 55 - SUPREME COURT], wherein the Hon’ble Apex Court set aside the order of the High Court rejecting the quashing petition and allowed the said appeal on the ground that the appellants therein were not the Managing Director or Joint managing Director of the accused company and nor were they signatories to the cheques in question. The Court held that the accused persons were merely independent, non-executive directors who had no role to play in the day to day affairs of the accused company.
In the present case, the Ld.MM committed an error by summoning the petitioner, who was not even an Additional Director-Non Executive in the accused company at the time when the cheques were issued and thus was not handling the affairs or the conduct of business of the accused company at the relevant time. These facts were also mentioned in the reply on behalf of the petitioner to the legal notices of the complainants. However, Ld. MM ignoring such vital aspects, mechanically proceeded to issue summons to the present petitioner.
The summoning orders qua petitioner are hereby set aside. The petitioner is acquitted for the offences alleged under section 138 NIA - Petition allowed.
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